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ESSENTIALS  OF  THE  LAW 
IN  TWO  VOLUMES 

VOL.  1  BLACKSTONE 
VOL.  2  ELEMENTARY  LAW 


A    R  E  V  1  E  W 

BLACKSTONE'S    COMMENTARIES 

WITH  EXPLANATORY  NOTES 


FOR  THE  USE  OF 


STUDENTS  AT   LAW 


SECOND   EDITION 


By 
MARSHALL  D.  EWELL,  LL.  D., 

LATI    PRBSIDBKT    AND    DKAN    OF   THE    KENT    COLLEGE    OP    LAW    OF   CHICAGO; 
AUTHOR   or    "  EWELL    ON    FIXTUKES,"    ETC.,    ETC. 


Albany,  N.  Y. 
MATTHEW  BENDER  &  COMPANY, 

INCORPORATED. 


1915.  >^ 


A\5 


i^iL  'J  J 


Copyright,  1882, 
By   MARSHALL   D.  EWELL. 


Copyright,  1915. 
By  MATTHEW  BENDER  &  COMPANY,  INCORPORATED 


ESSENTIALS  OF  THE  LAW. 


PREFACE  TO  SECOND  EDITION. 


The  first  edition  of  this  series  was  published  in  1882. 
"When  the  writer  was  first  appointed  Professor  ot  Elemen- 
tary Common  Law  in  the  Union  College  of  Law  of  Chicago 
in  1876,  it  became  his  duty,  among  other  topics,  to  instruct 
successive  classes  in  Blackstone  's  Commentaries  He  found 
it  necessary  to  study  harder  probably  than  his  students, 
and  it  was  his  practice  to  read  pen  in  hand  and  to  under- 
score and  annotate  the  important  passages.  With  every 
succeeding  year  these  distinguishing  marks  and  notes  were 
extended  and  elaborated,  and  formed  the  basis  of  the  sys- 
tem of  differentiation  of  the  text,  which  is  the  distinguish- 
ing feature  of  this  series.     For  twenty-seven  successive 

.  years  this  work  continued  with  successive  classes.  In 
making  this  revision  the  distinguishing  features  of  the  text 
have  been  retained.  In  addition  thereto,  since  the  writer 
no  longer  appears  in  person  before  classes  of  students  with 
oral  explanations,  it  has  been  thought  advisable  to  supple- 

.  ment  the  text  with  explanatory  notes,  not  merely  for  the 
purpose  of  fortifying  the  text  by  authority,  but  to  take  the 
place  as  far  as  possible  of  the  former  oral  expositions  and 
thus  make  the  text  more  understandable.  At  the  same 
time  references  have  been  made  to  such  text  books  and  lead- 
ing cases  as  seemed  best  adapted  to  develop  and  amplify 
the  text.  Instead  of  appending  a  glossary  at  the  end  of  the 
book,  such  terms  as  seemed  to  need  definition  or  explana- 
tion have  been  dealt  Avith  either  in  the  text  or  notes  as  they 

'  occurred,  all  new  matter  in  the  text  being  included  within 
brackets,  thus :  [  ] .    Maxims  in  foreign  languages  have  been 

j  translated  as  they  occurred.  As  the  book  is  primarily  in- 
tended for  students,  it  has  not  been  loaded  down  with  cases, 
though  it  is  believed  that  a  reference  to  the  elementary 
principles  contained  in  this  series  with  the  'authors  and 
cases  supporting  them  will  be  advantageous  to  every  one 
interested  in  the  study  or  practice  of  law.     In  the  text, 

[V] 


vi  Preface  to  Second  Edition. 

notes,  and  interpolated  books  and  chapters  written  by  the 
author,  will,  it  is  Relieved,  be  found  a  comprehensive 
though  brief  review  of  the  whole  body  of  English  and 
American  customary  law,  including  statutes  which  by 
reason  of  their  all  but  universal  adoption  have  become  a 
part  of  the  general  law  of  the  land.  To  make  these  separate 
books  and  chapters  exhaustive  would  require  a  library; 
but  enough  has  been  given  to  give  a  general  though  brief 
review  of  the  subjects  treated;  and  the  student  is  referred 
to  more  exhaustive  treatises  for  further  explanations. 

It*  must  be  borne  in  mind  that  this  work  is  essentially  an 
elementary  treatise  upon  the  common  law.  Long  ex- 
perience leads  the  editor  to  the  conclusion  that  the  best 
preparation  for  a  student  is  a  thorough  knowledge  of  the 
common  law,  as  distinguished  from  statutes;  and  that  to 
attempt  to  incorporate  in  this  treatise  modern  statutes 
would  be  harmful  to  the  best  interests  of  the  student. 

In  absence  of  statutes  to  the  contrary,  the  common  law 
everywhere  furnishes  the  rule  of  decision;  it  also  furnishes 
rules  for  the  interpretation  and  construction  of  statutes. 
The  common  law  is  a  creature  of  slow  growth;  whereas 
statutes  are  too  often  ephemeral,  multifarious  and  not  well 
considered.  Always  begin  an  investigation,  therefore,  with 
the  common  law  as  a  starting  point,  and  read  the  statutes 
thereafter.  Defer  a  study  of  the  statutes  until  acquainted 
with  the  common  law.  This  has  been  the  rule  of  those 
learned  in  the  law  from  the  time  of  Lord  Coke  down  to  the 
present.  It  has  always  been  a  rule  of  conduct  with  the 
writer  to  be  as  willing  to  impart  instruction  to  students  as 
the  students  themselves  were  willing  to  receive  instruction. 
The  study  of  law  is  at  best  difficult  to  the  beginner;  and  he 
wlio  expects  to  excell  must  be  prepared  to  devote  years  of 
unremiting  toil  to  its  study.  To  remove  some  of  the  ob- 
stacles and  to  make  the  first  years  of  the  novitiate  of  the 
student  more  pleasant  and  profitable  is  the  real  object  of 
these  volume's. 

MARSHALL  D.  EWELL.    ; 

Chicago,  Illinois,  January,  1915. 


PREFACE  TO  FIRST  EDITION. 


Blackstone's  Commentaries  deservedly  constitute  in  this 
country  the  first  book  of  the  course  of  legal  study  usually 
prescribed  for  students  of  the  law.  Probably,  however, 
every  student  who  reads  Blackstone  is  embarrassed  by  his 
own  inability  to  distinguish  obsolete  or  unimportant  matter 
from  the  vital  and  fundamental  principles  of  the  law,  and 
therefore  does  not  know  what  parts  demand  the  most  atten- 
tion, in  order  to  fix  them  in  his  memory,  and  what  may  be 
dismissed  with  a  more  superficial  examination.  The  object 
of  this  Abridgment  is  to  relieve  that  embarassment,  and 
thereby  to  lighten  his  labor  and  economize  his  time  by 
directing  his  energies  to  what  seems  most  worthy  of  atten- 
tion. This  has  been  attempted  by  eliminating  obsolete  and 
unimportant  matter,  by  displaying  leading  principles  in 
heavy-faced  type,  and  by  printing  the  more  important  parts 
of  the  text  in  small  pica,  while  matter  of  minor  importance 
as  a  rule  has  been  printed  in  brevier.  Doubtless  there  will 
be  some  difference  of  opinion  as  to  what  is  of  more  and 
what  of  less  importance,  and  is  this  respect  this  work  only 
expresses  the  opinion  of  the  Editor, —  formed,  however, 
after  considerable  experience  in  instructing  young  men 
just  beginning  the  study  of  law.  It  frequently  happened 
throughout  the  work  that  obsolete  matter  was  so  inter- 
woven with  matter  of  present  importance  that  the  plan  in- 
dicated above  could  not  conveniently  be  pursued.  In  such 
cases  the  obsolete  matter  has  been  indicated  by  the  word 
*'  obselete  "  inclosed  within  brackets.  Matter  merely  his- 
torical has  in  some  instances  been  considered  so  important 
to  a  proper  understanding  of  the  present  state  of  the  law  as 
to  deserve  more  than  a  passing  notice;  such  matter  has  ac- 
cordingly been  printed  in  the  larger  type.  The  principal 
difficulty  has  been  in  deciding  what  to  omit.  A  large 
amount  of  obsolete  matter,  and  matter  merely  historical, 
explanatory,  or  argumentative,  has  been  omitted,  but  it  is 

[vii] 


Tiii  Peeface  to  First  Edition. 

believed  that  everything  important  for  the  student  to  know 
has  been  retained.  As  a  rule,  the  exact  language  of  the 
Author  has  been  preserved.  Sometimes,  however,  mere 
verbal  changes  not  affecting  the  sense  have  been  made,  in 
order  to  economize  space.  Great  care  has  been  taken  to 
make  no  omission  or  alteration  that  would  change  the  mean- 
ing of  the  text  or  render  that  meaning  obscure,  and  matter 
entirely  new  is  in  every  instance  inclosed  within  brackets, 
thus:  [  ].  The  original  paging  has  been  indicated  by  figures 
in  brackets  placed  at  the  end  of  the  first  complete  sentence 
of  each  page  of  the  Author  appearing  in  this  work.  The 
notes  of  the  Author  and  of  previous  editors  have  necessarily 
been  omitted.  To  have  retained  them  would  have  defeated 
the  object  of  the  volume.  Occasionally,  however,  when 
thought  necessary  to  explain  a  change  in  the  law,  to  eluci- 
date an  obscure  expression,  or  to  direct  attention  to  an 
authority  throwing  light  upon  the  subject,  a  few  words  or 
a  reference  to  an  authority  inclosed  in  brackets  have  been 
thrown  into  the  text;  but,  for  the  reason  already  stated,  no 
systematic  attempt  at  annotation  has  been  attempted.  As 
Blackstone's  Commentaries  are  perhaps  the  most  import- 
ant institutional  work  placed  in  the  hands  of  students  at 
law,  more  space  has  been  devoted  to  them  than  will  be  given 
to  any  other  work  or  subject  in  the  series  of  which  this 
forms  the  first  volume.  It  is  believed,  however,  that  no 
more  space  has  been  given  to  the  work  of  this  Author  than 
it  justly  deserves.  To  students  pursuing  their  studies  in 
an  office,  which  in  the  majority  of  cases  is  equivalent  to 
studying  law  alone,  and  to  students  in  law  schools  when 
upon  review  or  preparing  for  examination,  it  is  believed 
that  this  Abridgment  will  prove  especially  serviceable;  and 
it  is  principally  for  their  use  that  its  preparation  has  been 
undertaken.  If  it  materially  assists  them  in  their  labors, 
its  purpose  will  have  been  accomplished. 

MARSHALL  D.  EWELL. 
Union  College  of  Law  of  Chicago, 
May  29,  1882. 


BIBLIOGRAPHICAL  NOTE. 


In  the  preparation  of  the  notes  and  citations  of  new 
authorities  to  this  edition  of  Blackstone  the  main  object  has 
been  to  make  the  law  of  the  text  correct,  easily  accessible, 
and  to  afford  references  such  that  the  student  so  desiring 
can  pursue  the  subject  farther.  In  our  experience  students 
do  not  as  a  rule  read  long  notes.  Where  the  proposition  in 
the  text  is  well  settled  law,  nothing  is  to  be  gained  by  ad- 
ding a  long  list  of  cases;  a  reference  to  an  approved  text 
book  where  the  cases  are  collected  is  ample.  We  once  heard 
an  eminent  lawyer  well  known  on  both  sides  of  the  Atlantic, 
rebuked  by  the  court  for  citing  cases  to  sustain  a  well-set- 
tled rule  of  law,  the  court  remarking  that  '*  counsel  might 
take  it  for  granted  that  the  court  knew  some  law."  In 
such  a  case,  however,  a  student  needs  a  start,  i.  e.,  a  refer- 
ence to  some  good  text  book  where  cases  are  collected. 
Very  few  propositions  have  been  passed  by  without  com- 
ment in  some  part  of  the  book.  If  the  rule  stated  in  tlio 
text  has  been  changed,  the  modern  rule  is  stated  with  au- 
thorities. If  the  text  has  become  obsolete  it  is  so  stated  or 
altogether  omitted.  In  some  cases  we  have  been  obliged  to 
refer  to  books  not  very  accessible  to  the  student,  e.  g., 
Wentworth's  Pleadings  (10  vols.),  1799,  because  the  topic 
could  not  be  found  (with  precedents)  fully  treated  else- 
where. These  old  precedents  in  prohibition,  scire  facias, 
mandamus,  quo  toarranto,  etc.,  etc.,  are  very  instructive. 

All  foreign  phrases  have  been  translated  where  they  re- 
spectively occur.  Such  a  glossary  as  would  be  useful  to 
a  student  would  occupy  more  space  than  the  whole  volume 
or  would  be  maddening  to  the  student  by  reason  of  omis- 
sions. The  student  may  need  a  Norman  French  dictionary, 
which  is  not  readily  accessible.  Kelham's  Norman  French 
Dictionary  will  be  found  reprinted  at  the  end  of  vol.  2  of 
Bouvier's  Law  Dictionary,  11th  Ed.,  copyrighted  in  1852, 
a  book  easily  found. 

[ix] 


X  BiBLIOaKAPHICAL   N'OTE. 

Next  to  actually  knowing  the  law,  is  to  know  where  to 
find  it.  To  teach  the  student  elementary  principles  and 
where  to  direct  his  attention  for  details  has  been  continu- 
ally in  our  mind. 

At  the  close  of  the  volume  will  be  found  a  collection  of 
old  precedents.  These  are  very  instructive  and  give  a 
flavor  of  reality  to  matters  valuable  by  reason  only  of  their 
forming  links  in  the  chain  of  history  connecting  the 
modern  to  the  older  jurisprudence.  Modern  precedents  can 
be  found  in  every  law  office.  When  we  were  listening  to 
the  lectures  of  the  Hon.  Thomas  M.  Cooley  in  1866-8,  we 
remember  his  advising  his  listeners  to  study  the  2d  and  3d 
volumes  of  Chitty's  Precedents,  and  this  is  still  good  advice. 
Remember  that  the  law  is  unknown  to  him  who  knoweth 
not  the  reason  thereof,"  and  we  might  add  also  the  his- 
torical growth  thereof. 

THE  EDITOR. 


A  TABLE  OF  EXOLISH  BEONAL  YEARS. 


Sovereigns.  Beginning  of  Reign.  Length  of  Reig^n, 

William  I October  14,  1066 21  years 

William  II September  26,  1087 13 

Henry  I August  5,  1100 36 

Stephen December  26,  1135 19 

Henry  II December  19,  1154 35      " 

Richard  I September  3,  1189 10 

John May  27,  1199 18 

Henry  III October   28.   1216 57 

Edward  I November  16,  1272 35 

Edward  II July  8,  1307 20 

Edward  III January  25,  1327 51 

Richard  II June  22,  1377 23 

Henry  IV Sept.  30,  1399 14 

Henry  V March  21,  1413 10       " 

Henry  VI September  1,  1422 39 

Edward  IV March  4,  1461 22 

Edward  V April  9,  1483 . . 

Richard  III June  26,   1483 3       " 

Henry  VII August  22,  1485 24       " 

Henry  VIII. April  22,  1509 38       " 

Edward  VI January  28,  1547 7 

Mary July  6,  1553 6 

Elizabeth November  17,  1558 45       " 

James  I March  24,  1603 23       " 

Charles  I March  27,  1625 24       " 

The  Commonwealth  January  30,  1649 11      " 

Charles  II*   May  29,  1660 37       " 

James  II February  6,  1685 4 

William  and  Mary February  13,  1689 14 

Anne March  8,  1702 13       " 

George  I August  1,  1714 13       " 

George  II June  11,  1727 34       " 

George  III October   25,   1760 60 

George  IV. January  29,  1820 11 

William  IV June  26,  1830 7       " 

Victoria June  20,  1837 63 

Edward  VII .lanuary  22,  1901 9      " 

George  V May  6,  1910 —      " 

*  Chas.  II  did  not  ascend  the  throne  till  May  29,  1660,  but  his  regnal 

years  are  reckoned  from  the  death  of  Charles  I,  January  30,  1649,  so  that 
the  year  of  his  restoration  is  styled  the  12th  year  of  his  reign. 

[xi] 


CONTENTS. 


INTRODUCTION. 
Chap.  Pagb 

I.    Omitted. 
II.    On  the  Nature  of  Jjslwb  in  G«neral 1 

III.  Of  the  Laws  of  England 11 

IV.  Of  the  Countries  subject  to  the  Laws  of  England 22 


BOOK    THE    FIRST. 

of  the  bights  of  pbxsons. 

Chap.  Page 

I.     Of  the  Absolute  Rights  of  Individuals 25 

II.     Of  the  Parliament 3G 

IIL     Of  the  King  and  his  Title 49 

IV.     Of  the  King's  Royal  Family 51 

V.    Of  the  Councils  belonging  to  the  King 53 

VI.     Of  the  King's  Duties 54 

VII.     Of  the  King's  Prerogative 55 

VIII.     Of  the  King's  Revenue 65 

IX.    Of  Subordinate  Magistrates 71 

X.     Of  the  People,  whether  Aliens,  Denizens,  or  Natives 82 

XI.     Of  the  Clergy 8i» 

XII.     Of  the  Civil  State 90 

XIII.  Of  the  Military  and  Maritime  States 94 

XIV.  Of   Master   and    Servant 95 

XV.     Of  Husband  and  Wife 103 

XVL     Of  Parent  and   Child 112 

XVII.     Of  Guardian  and  Ward 119 

XVIII.     Of  Corporations 124 


BOOK   THE    SECOND, 

of  the  bights  of  thinos. 
Chap.  Paqb 

I.     Of  Property  in  general 137 

II.    Of  Real  Property;  and  first,  of  Corporeal  Hereditaments....     145 


XJV 


Contents. 


Chap.  Page 

III.  Of  Incorporeal  Hereditaments 149 

IV.  Of  the  Feodal  System 156 

V.     Of  the  Ancient  English  Tenures 162 

VI.     Of  the  Modern  English  Tenures 168 

VII.     Of  Freehold  Estates  of  Inheritance 17» 

VIII.     Of  Freeholds  noft  of  Inheritance 189 

IX.     Of  Estates  less  than  Freehold 200 

X.     Of  Estates  upon  Condition 207 

XI.     Of  Estates  in  Possession,  Remainder,  and  Reversion 214 

XII.  Of  Estates  in  Severalty,  Joint-tenancy,  Coparcenary,  and  Com- 
mon   224 

XIII.  Of  the  Title  to  Things  Real  in  general 235 

XIV.  Of   Title   by   Descent 239 

XV.     Of  Title  by  Purchase;  «nd  I.  by  Escheat 248 

XVI.          II.  Of  Title  by  Occupancy 256 

XVII.         III.  Of  Title  by  Prescription 260 

XVIII.         IV.  Of  Title  by  Forfeiture 263 

XIX.           V.  Of   Title  by  Alienation 274 

XX.     Of  Alienation  by  Deed 279 

XXI.     Of  Alienation  by  matter  of  Record 311 

XXII.     Of  Alienation  by  Special  Custom 321 

XXIII.  Of  Alienation  by  Devise 325 

XXIV.  Of  Things  Personal , 333 

CXXV.     Of  Property  in   Things   Personal 335 

XXVI.     Of  Title  to  Things  Personal  by  Occupancy 344 

XXVII.     Of  Title  by  Prerogative  and  Forfeiture 351 

XXVIII.     Of  Title  by  Custom 357 

XXIX.     Of  Title  by  Succession,  Marriage,  and  Judgment 360 

XXX.     Of  Title  by  Gift,  Grant,  and  Contract 368 

XXXI.     Of  Title  by   Bankruptcy 390 

XXXII.     Of  Title  by  Testament  and  Administration 401 


BOOK    THE    THIRD. 


of  pbivate  wbongs. 

Chap.  Page 
I.     Of  the  Redress  of  Private  Wrongs  by  the  mere  Act  of  the 

Parties 423 

II.     Of  Redress  by  the  mere  Operation  of  Law 434 

III.  Of  Courts  in  G«neral 436 

IV.  Of  the  Public  Courts  of  Common  Law  and  Equity 441 

V.     Of  Courts  Ecclesiasticf^l,  Military,  and  Maritime 456 

VI.     Of  Courts  of  a  Special  Jurisdiction 457 

VII.     Of  the  Cognizance  of  Private  Wrongs 458 


Contents. 


XV 


Chap.                                                                                                        Page 
VIII.     Of  Wrongs  and  their  Remedies,  respecting  the  Rights  of  Per- 
sons   469 

IX.     Of  Injuries  to  Personal  Property 489 

X.     Of  Injuries  to  Real  Property;   and  first,  of  Dispossession,  or 

Ouster  of  the  Freehold 508 

XI.     Of  Dispossession  or  Ouster  of  Chattels  Real 514 

XII.     Of  Trespass 520 

XIII.  Of  Nuisance 524 

XIV.  Of  Waste 527 

XV.     Of  Subtraction 530 

XVI.     Of  Disturbance 531 

XVII.     Of  Injuries  proceeding  from  or  affecting  the  Crown 533 

XVIII.     Of  the  Pursuit  of  Remedies -by  Action,  and  first,  of  the  Orig- 
inal Writ 540 

XIX.     Of  Process  .   . 544 

XX.     Of  Pleading 554 

XXI.     Of  Issue,  and  Demurrer 571 

XXII.     Of  the  several  Species  of  Trial 575 

XXIII.  Of   the   Trial   by   Jury 579 

XXIV.  Of  Judgment  and  its  Incidents 598 

XXV.     Of  Proceedings  in  the  Nature  of  Appeals G06 

XXVI.     Of  Execution '. . .  609 

XXVII.     Of  Proceedings  in  the  Courts  of  Equity 616 


BOOK   THE   FOURTH. 


of  public  wbongs. 

Chap.  Page 

I.     Of  the  Nature  of  Crimes  and  their  Punishment 641 

II.     Of  the  Persons  capable  of  committing  Crimes 643 

III.  Of   Principals   and   Accessaries 650 

IV.  Of  Offences  against  God  and  Religion 655 

V.     Of  Offences  against  the  Law  of  Nations 657 

VI.     Of  High  Treason 661 

VII.     Of  Felonies  injurious  to  the  King's  Prerogative 667 

VIII.     Of  -Praemunire 6G9 

IX.     Of  Misprisions  and  Contempts  affecting  the  King  and  Govern- 
ment   '. 670 

X.     Of  Offences  against  Public  Justice 674 

XI.     Of  Offences  against  the  Public  Peace 683 

XII.     Of  Offences  against  Public  Trade 689 

XIII.  Of  Offences  against  the  Public  Health  and  the  Public  Police 

or  Economy 693 

XIV.  Of  Homicide 699 


XVI 


Contents. 


Chap.  Pagb 

XV.  Of  Offences  against  the  Persons  of  Individuals 714 

XVI,  Of  Offences  against  the  Habitations  of  Individuals 713 

XVII.  Of  Offences  against  Private  Property 724 

XVIIL  Of  the  Means  of  preventing  Offences 733 

XIX.  Of  Courts  of  a  Criminal  Jurisdiction 737 

XX.  Of  Summary  Convictions.  . 741 

XXL  Of  Arrests '. 745 

XXII.  Of  Commitment  and  Bail 749 

XXIII.  Of  the  Several  Modes  of  Prosecution 753 

XXIV.  Of  Process  upon  an  Indictment 760 

XXV.  Of  Arraignment  and  its  Incidents 762 

XXVI.  Of  Plea  and  Issue 767 

XXVII.  Of  Trial  and  Conviction. 772 

XXVIII.  Of  the  Benefit  of  Clergy 782 

XXIX.  Of  Judgment  and  its  Consequences 791 

XXX.  Of  Reversal  of  Judgment , 79.> 

XXXI.  Of  Reprieve  and  Pardon 797 

XXXII.  Of  Execution 801 

Appendix  .  . 803 


BLACKSTONE'S   COMMENTARIES. 


INTRODUCTION. 


SECTION  I. 

ON  THE  STUDY  OF  THE  LAW.* 


SECTION  II. 

ON  THE  NATUKE  OF  LAWS  IN  GENERAL. 


Law,  in  its  most  general  and  comprehensive  sense,  signi- 
fies a  rule  of  action,  and  is  applied  indiscriminately  to  all 
kinds  of  action,  whether  animate  or  inanimate,  rational  or 
irrational.  Thus  we  say  the  laws  of  motion,  of  gravitation, 
of  optics,  or  mechanics,  as  well  as  the  laws  of  nature  and 
of  nations.  And  it  is  that  rule  of  action  which  is  prescribed 
bv  some  superior,  and  which  the  inferior  is  bound  to  obey.^ 
[38] 

1.  This  section,  while  very  interest-  2.  See  criticisms  of  this  passage  in 

ing,  is  omitted  from  this  edition  for  the    article    on    Sir    William    Black- 

th^  reason  that  the  space  can  be  more  stone   (9th  Ed.),  Encyclopaedia  Brit- 

profitably  occupied  by  other  matter.  tanica.       See,  also,  the  learned  notes 

"  Suggestions  Concerning  the  Study  of  the  late  William  G.  Hammond,  pp. 
of  the  Law,"  written  by  the  late  95-117,  vol.  1,  Introduction  to  Black- 
Honorable  Thomas  M.  Cooley  in  1870  stone's  Commentaries;  Holland  on 
and  occupying  28  pages  at  the  begin-  Jurisprudence,  60;  Maine's  Early 
ning  of  his  edition  of  Blackstone's  Hist,  of  Inst.,  372;  Maine's  Anct. 
Commentaries,  may  here  be  read  with  Law,  ch.  5,  p.  110;  Wilson's  Lect.  oa 
profit  by  the  student.  Law,  vol.  1,  pp.  65,  85,  89,  91. 


2  The  Nature  of  Laws.  [Inteo. 

But  laws,  in  their  more  confined  sense,  denote  the  rules, 
not  of  action  in  general,  but  of  human  action  or  conduct; 
that  is,  the  precepts  by  which  man,  a  creature  endowed  with 
both  reason  and  freewill,  is  commanded  to  make  use  of 
those  faculties  in  the  general  regulation  of  his  behavior. 
[39] 

As  man  depends  absolutely  upon  his  Maker  for  every- 
thing, it  is  necessary  that  he  should,  in  all  points,  conform 
to  his  Maker's  will.  This  will  of  his  Maker  is  called  the 
law  of  nature.  These  [laws  laid  down  by  God]  are  the 
eternal  immutable  laws  of  good  and  evil,  to  which  the 
Creator  himself,  in  all  his  dispensations,  conforms;  and 
which  he  has  enabled  human  reason  to  discover,  so  far  as 
they  are  necessary  for  the  conduct  of  human  actions.  [40] 
Such,  among  others,  are  these  principles:  that  we  should 
live  honestly  [honorably],  should  hurt  nobody,  and  should 
render  to  every  one  his  due;  to  w^hich  three  general  precepts 
Justinian  has  reduced  the  whole  doctrine  of  law.  In  con- 
sequence of  the  mutual  connection  of  justice  and  human 
felicity,  the  Creator  has  not  perplexed  the  law  of  nature 
wdth  a  multitude  of  abstracted  rules  and  precepts,  referring 
merely  to  the  fitness  or  unfitness  of  things,  but  has  graci- 
ously reduced  the  rule  of  obedience  to  this  one  paternal 
precept,  **  that  man  should  pursue  his  own  true  and  sub- 
stantial happiness."  [41]  This  is  the  foundation  of  what 
we  call  ethics,  or  natural  law. 

This  law  of  nature,  being  coeval  with  mankind,  and  dic- 
tated by  God  himself,  is  of  course  superior  in  obligation  to 
any  other.  It  is  binding  over  all  the  globe,  in  all  countries, 
and  at  all  times:  no  human  laws  are  of  any  validity^  [t.  e. 

The  doctrine  that  law  is  necessarily  garded  as  the  divine  law.    CJourts  will 

the   command    of   a   superior   is   con-  not,  however,  adopt  such  a  construc- 

demned    by   early    American    jurists,  tion  unless  compelled  to  do  so  by  the 

See      Hammond's      Introduction      to  clear  words  of  the  statute.    See  gen- 

Blackstone,  p.  112.  erally  Austin  on  Jurisprudence  (Eng. 

3.  So   long   as   the   legislature   has  Ed.),  p.  220  note;  Holland's  Jur.,  34; 

constitutional    authority   to    enact   a  Calder  v.  Bull,  3  Dall.  386;  Fletcher 

law,    it   ia   binding   upon   the   courts,  v.  Peck,  6  Cranch,  87. 
even  though  it  violates  what  is  re- 


Sect.  2.]  The  Nature  of  Laws.  3 

in  the  forum  of  conscience],  if  contrary  to  this;  and  such 
of  them  as  are  valid  derive  all  their  force,  and  all  their  au- 
thority, mediately  or  immediately,  from  this  original. 

But,  in  order  to  apply  this  to  the  particular  exigencies  of 
each  individual,  it  is  still  necessary  to  have  recourse  to 
reason,  whose  office  it  is  to  discover  what  the  law^  of  nature 
directs  in  every  circumstance  of  life,  by  considering  w^hat 
method  Avill  tend  the  most  effectually  to  our  own  substantial 
happiness.  And  if  our  reason  were  always  clear  and  per- 
fect, the  task  w^ould  be  pleasant  and  easy;  we  should  need 
no  other  guide  but  this.  But  every  man  now  finds  the  con- 
trary in  his  own  experience ;  that  his  reason  is  corrupt,  and 
his  understanding  full  of  ignorance  and  error. 

This  has  given  manifold  occasion  for  the  benign  interpo- 
sition of  divine  Providence,  which  hath  been  pleased,  at 
sundry  times  and  in  divers  manners,  to  discover  and  enforce 
its  laws  by  an  immediate  and  direct  revelation.  [42]  The 
doctrines  thus  delivered  we  call  the  revealed  or  divine  law, 
and  they  are  to  be  found  only  in  the  holy  scriptures. 

Upon  these  two  foundations,  the  law  of  nature  and  the 
law  of  revelation,  depend  all  human  laws;  that  is  to  say, 
no  human  laws  should  be  suffered  to  contradict  these. 
There  are,  it  is  true,  a  great  number  of  indifferent  points 
in  which  both  the  divine  law  and  the  natural  leave  a  man 
at  his  own  liberty,  but  wiiicli  are  found  necessary,  for  the 
benefit  of  society,  to  be.  restrained  within  certain  limits. 
And  herein  it  is  that  human  laws  have  their  greatest  force 
and  efficacy;  for,  with  regard  to  such  points  as  are  not  in- 
different, human  laws  are  only  declaratory  of,  and  act  in 
subordination  to,  the  former. 

As  it  is  impossible  for  the  whole  race  of  mankind  to  be 
united  in  one  great  society,  they  must  necessarily  divide 
into  many,  and  form  separate  states,  commonwealths,  and 
nations,  entirely  independent  of  each  other,  and  yet  liable 
to  a  mutual  intercourse.  [43]  Hence  arises  a  third  kind 
of  law  to  regulate  this  mutual  intercourse,  called  *  *  the  law 
of  nations, ' '  which,  as  none  of  these  states  wdll  acknowledge 
a  superiority  in  the  other,  cannot  be  dictated  by  any,  but 
depends  entirely  upon  the  rules  of  natural  law,  or  upon 


4  The  Nature  of  Laws.  [Intro. 

mutual  compacts,  treaties,  leagues,  and  agreements  between 
these  several  communities :  in  the  construction  also  of  which 
compacts  we  have  no  other  rule  to  resort  to,  but  the  law  of 
nature;  being  the  only  one  to  which  all  the  communities 
are  equally  subject. 

Municipal  law  is  properly  defined  to  be  "a  rule  of  civil 
conduct  prescribed  by  the  supereme  power  in  a  state,  com- 
manding what  is  right  and  prohibiting  what  is  wrong.  "^ 
[44]  [This  definition  will  be  improved  by  omitting  the 
words,  **  commanding  what  is  right,"  &c.] 

And,  first,  it  is  a  rule:  not  a  transient,  sudden  order  from 
a  superior  to  or  concerning  a  particular  person;  but  some- 
thing permanent,  uniform,  and  universal.  It  is  also  called 
a  rule,  to  distinguish  it  from  advice  or  counsel,  whicli  we 
are  at  liberty  to  follow  or  not,  as  we  see  proper,  and  to  judge 
upon  the  reasonableness  or  unreasonableness  of  the  thing 
advised :  whereas  our  obedience  to  the  law  depends  not  upon 
our  a pprohation ,  but  upon  the  makers  will.  It  is  called  a 
rule,  to  distinguish  it  from  a  compact  or  agreement^  for  a 
compact  is  a  promise  proceeding  from  us,  law  is  a  command 
directed  to  us.    [45] 

Municipal  law  is  also  '*  a  rule  of  civil  conduct."  This 
distinguishes  municipal  law  from  the  natural,  or  revealed; 
the  former  of  which  is  the  rule  of  moral  conduct,  and  the 
latter  not  only  the  rule  of  moral  conduct,  but  also  the  rule 
of  faith. 

It  is  likewise  ' '  a  rule  prescribed. ' '  Besides  a  bare  reso- 
lution, confined  in  the  breast  of  the  legislator,  without  mani- 
festing itself  by  some  external  sign,  can  never  be  properly 
a  law.  It  is  requisite  that  this  resolution  be  notified  to  the 
people  who  are  to  obey  it.    But  the  manner  in  which  this 

4.  See     note     on     preceding     page.  lative  authority,  its  moral  quality  is 

Many  acts  of  the  legislature  are  in  immaterial. 

themselves    clearly    right,    some    are  5.  In     American     jurisprudence     a 

as  clearly  wrong  in  the  forum  of  con-  statute    may    constitute    a    contract, 

science,  and  many  are  in  themselves  See    the   leading  case  of   Dartmouth 

indifferent    in    their    moral    quality.  College  v.  Woodward,  4  Wheat.  518. 

So  long  as  the  act  is  within  the  legis-  Many  corporate  charters  are  legisla- 
tive contracts. 


Sect.  2.]  The  N^atuee  of  Laws.  5 

notification  is  to  be  made,  is  matter  of  very  great  indiffer- 
ence. It  may  be  notified  by  universal  tradition  and  long 
practice,  which  supposes  a  previous  publication,  and  is  the 
case  of  the  common  law  of  England.  It  may  be  notified, 
riva  voce,  by  officers  appointed  for  that  purpose,  as  is  done 
with  regard  to  proclamations,  and  such  acts  of  parliament 
as  are  appointed  to  be  publicly  read  in  churches  and  other 
assemblies.  [46]  It  may  lastly  be  notified  by  writing, 
printing,  or  the  like ;  which  is  the  general  course  taken  with 
all  our  acts  of  parliament.®  Yet,  whatever  way  is  made 
use  of,  it  is  incumbent  on  the  promulgators  to  do  it  in  the 
most  public  and  perspicuous  manner;  not  like  Caligula, 
who  wrote  his  laws  in  a  very  small  character  and  hung 
them  upon  high  pillars,  the  more  effectually  to  ensnare  the 
people.  There  is  still  a  more  unreasonable  method  than 
this,  w^hich  is  called  making  of  laws  ex  post  facto  [after 
the  deed] ;  when  after  an  action  (indifferent  in  itself)  is 
committed,  the  legislator  then  for  the  first  time  declares 
it  to  have  been  a  crime,  and  inflicts  a  punishment  upon  the 
person  who  has  committed  it.^    All  laws  should  be  there- 

6.  No  notification  is  necessary  un-  prospectively  and  not  retrospectively, 
less  required  by  constitution  or  stat-  unless  such  is  clearly  the  ifitention 
ute.  The  case  of  Mary  and  Susan,  of  the  legislature;  and  in  some  states 
1  Wheat.  58;  The  Ann,  1  Gall.  62.  there     are    constitutional     provisions 

7.  "  The  old  rule  was  that  statutes,  prohibiting  retrospective  legislation, 
unless  otherwise  ordered,  took  efTect  As  to  the  limitations  upon  the  power 
from  the  first  day  of  the  session  in  of  the  legislature  to  enact  retrospec- 
which  they  were  passed."  Cooley's  tive  laws,  see  generally  Cooley's 
Const.  Lim.,  §§   155-156.     "  The  pres-  Const.  Lim.,  §  369  et  seq. 

ent  rule  is  that  an  act  takes  eflfect  Art.  I,  sec.  9,  cl.  3,  U.  S.  Const., 
from  the  time  when  the  formalities  of  prohibits  Congress  from  passing  any 
enactment  are  actually  complete  un-  bill  of  attainder  or  ex  post  facto  law; 
der  the  constitution,  unless  it  is  other-  and  section  10  of  the  same  article  pro- 
wise  ordered  or  unless  there  is  some  hibits  any  state  from  enacting  such 
constitutional  or  statutory  rule  on  the  laws.  In  Calder  v.  Bull,  3  Dall.  386 
subject  which  prescribes  otherwise."  ex  post  facto  laws  were  construed  to 
Td.,  §  156.  In  some  of  the  states  the  include:  (1)  Every  law  which  makes 
constitutions  fix  the  times  when  the  criminal  an  act  innocent  when  per- 
acts  shall  go  into  effect.  Id.,  §§  156-  formed  and  punishes  such  action;  (2) 
158.  or  which  makes  its  degree  of  crirain- 
Every    statute    shall    be    construed  ality  greater  than  it  was  when  com- 


6  The  Nature  of  Laws.  [Intro. 

fore  made  to  commence  in  futiiro  [in  the  future],  and  be 
notified  before  their  commencement;  which  is  implied  in 
the  term  "  prescribed."  But  when  this  rule  is  in  the  usual 
manner  notified,  or  prescribed,  it  is  then  the  subject 's  busi- 
ness to  be  thoroughly  acquainted  therewith;  for  if  ignor- 
ance, o-f  what  he  might  know,  were  admitted  as  a  legitimate 
excuse,  the  law  would  be  of  no  effect,  but  might  always  be 
eluded  with  impunity.* 

But  farther:  municipal  law  is  "  a  rule  of  civil  conduct 
prescribed  by  the  supreme  power  in  a  state."  For  legis- 
lature, as  was  before  observed,  is  the  greatest  act  of  su- 
periority that  can  be  exercised  by  one  being  over  another. 
Wherefore  it  is  requisite  to  the  very  essence  of  a  law  that 
it  be  made  by  the  supreme  power.  Sovereignty  and  legisla- 
ture are  indeed  convertible  terms;  one  cannot  subsist  with- 
out the  other. 

The  only  tme  and  natural  foundations  of  society  are  the  wants  and 
the  fears  of  individuals.  [47]  Single  families  formed  the  first  natural 
society,  among  themselves;  which,  every  day  extending  its  limits,  laid 
the  first  though  imperfect  rudiments  of  civil  or  political  society:  and 
when  it  grew  too  large  to  subsist  with  convenience  in  that  pastoral  state, 
wherein  the  patriarchs  appear  to  have  lived,  it  necessarily  subdivided 
itself  by  various  migrations  into  more.  Afterwards,  as  agriculture  in- 
creased, which  employs  and  can  maintain  a  much  greater  number  of 
hands,  migrations  became  less  frequent:  and  various  tribes,  which  had 
formerly  separated,  reunited  again;  sometimes  by  compulsion  and  con- 
quest, sometimes  by  accident,  and  sometimes  perhaps  by  compact.  But 
though  society  had  not  its  formal  beginning  from  any  convention  of  in- 
dividuals actuated  by  their  wants  and  their  fears,  yet  it  is  the  sense  of 
their  weakness  and  imperfection  that  keeps  mankind  together,  that 
demonstrates  the  necessity  of  this  union,  and  that  therefore  is  the  solid 
and  natural  foundation,  as  well  as  the  cement  of  civil  society.  And  this 
is  what  we  mean  by  the  original  contract  of  society,  which,  though  per- 
haps in  no  instance  it  has  ever  been  formally  expressed  at  the  first  in- 
stitution of  a  state,  yet  in  nature  and  reason  must  always  be  understood 
and  implied  in  the  very  act  of  associating  together:    namely,  that  the 


mitted;     (3)     or    which    changes    the  dence  so  as  to  warrant  a  conviction 

punishment  and  inflicts  a  greater  pun-  on    less   or   different   testimony   than 

ishment  than  could  have  been  legally  was  required  by  the  laws  at  the  time 

imposed  when  the  act  was  committed;  the  crime  was  committed, 

or  (4)  which  changes  the  rules  of  evi-  8.  This  is  universally  the  law. 


Sect.  2.]  The  Nature  of  Laws.  7 

whole  should  protect  all  its  parts,  and  that  every  part  should  pay  obedi- 
ence to  the  will  of  the  whole,  or,  in  other  words,  that  the  community 
should  guard  the  rights  of  each  individual  member,  and  that  <in  return 
for  this  protection)  each  individual  should  submit  to  the  laws  of  the  com- 
munity; without  which  submission  of  all  it  was  impossible  that  protec- 
tion should  be  certainly  extended  to  any.  [48]  For  when  civil  society 
is  once  formed,  government  at  the  same  time  results  of  course,  as  neces- 
sary to  preserve  and  to  keep  that  society  in  order. 

The  political  writers  of  antiquity  will  not  allow  more 
than  three  regular  forms  of  government:  the  first,  when 
the  sovereign  power  is  lodged  in  an  aggregate  assembly 
consisting  of  all  the  free  members  of  a  community,  which 
is  called  a  democracy;  the  second,  when  it  is  lodged  in  a 
council,  composed  of  select  members,  and  then  it  is  styled 
an  aristocracy;  the  last,  when  it  is  entrusted  in  the  hands 
of  a  single  person,  and  then  it  takes  the  name  of  a  monarchy. 
[49]  All  other  species  of  government,  they^say,  are  either 
<3orruptions  of,  or  reducible  to,  these  three. 

In  a  democracj',  where  the  right  of  making  laws  resides  in  the  people 
at  large,  public  virtue,  or  goodness  of  intention,  is  more  likely  to  be 
found  than  either  of  the  other  qualities  [wisdom  and  power]  of  govern- 
ment. Popular  assemblies  are  frequently  foolish  in  their  contrivance 
and  weak  in  their  execution,  but  generally  mean  to  do  the  thing  that  is 
right  and  just,  and  have  always  a  degree  of  patriotism  or  public  spirit. 
In  aristocracies  there  is  more  wisdom  to  be  found  than  in  the  other 
frames  of  government;  being  composed,  or  intended  to  be  composed, 
of  the  most  experienced  citizens;  but  there  is  less  honesty  than  in  a 
republic,  and  less  strength  than  in  a  monarchy.  [50]  A  monarchy  is  in- 
deed the  most  powerful  of  any,  for,  by  the  entire  conjunction  of  the  leg- 
islative and  executive  powers,  all  the  sinews  of  government  are  knitted 
together  and  united  in  the  hand  of  the  prince;  but  then  there  is  imminent 
danger  of  his  employing  that  strength  to  improvident  or  oppressive  pur- 
poses. Democracies  are  usually  the  best  calculated  to  direct  the  end  of 
a  law;  aristocracies  to  invent  the  means  by  which  that  end  shall  be 
obtained;  and  monarchies  to  carry  those  means  into  execution.  And  the 
ancients  had. in  general  no  idea  of  any  other  permanent  form  of  govern- 
ment but  these  three;  for  though  Cicero  declares  himself  of  opinion, 
"  esse  optime  constitutam  rempuhlicam  quae  ex  tribus  generihus  illis,  regali, 
Optimo,  et  populari,  sit  modice  confusa,"  9  yet  Tacitus  treats  this  notion  of  a 

9.  Tlie  best  constituted  republic  is  these  three  estates:  the  monarchial, 
ti'.at    which    is    duly    compounded   of      aristocratical  and  democratical. 


8  The  Nature  of  Laws.  [Intro. 

mixed  government,  formed  out  of  them  all,  and  partaking  of  the  ad- 
vantages of  each,  as  a  visionary  whim,  and  one  that,  if  effected,  could 
never  be  lacting  or  secure. 

But  tbe  British  constitution  ^  has  long  remained  a  standing  exception 
to  the  truth  of  this  observation.  For  as  with  us  the  executive  power  of 
the  laws  is  lodged  in  a  single  person,  they  have  all  the  advantages  of 
strength  and  despatch  that  are  to  be  found  in  the  most  absolute  mon- 
archy,— and  as  the  legislature  of  the  kingdom  is  entrusted  to  three  dis- 
tinct powers,  entirely  independent  of  each  other:  first,  the  king;  sec- 
ondly, the  lords  spiritual  and  temporal,  which  is  an  aristocratical  as- 
sembly of  persons  selected  for  their  piety,  their-  birth,  their  wisdom, 
their  valor,  or  their  property;  and,  thirdly,  the  House  of  Commons, 
freely  chosen  by  the  people  from  among  themselves,  which  makes  it  a  kind 
of  democracy, — as  this  aggregate  body,  actuated  by  different  springs  and 
attentive  to  different  interests,  composes  the  British  parliament  and  has 
the  supreme  disposal  of  everything,  there  can  no  inconvenience  be  at- 
tempted by  either  of  the  three  branches  but  will  be  withstood  by  one  of 
the  other  two,  each  branch  being  armed  with  a  negative  power  sufficient 
to  repel  any  innovation  which  it  shall  think  inexpedient  or  danger- 
ous. [51]  If  ever,  it  should  happen  that  the  independence  of  any  one  of 
the  three  should  be  lost,  or  that  it  should  become  subservient  to  the 
views  of  either  of  the  other  two,  there  would  soon  be  an  end  of  our  con- 
stitution. [52]  [The  House  of  Commons  is  now  in  the  ascendency,  and 
still  the  constitution  survives.] 

As  tbe  po^er  of  making  laws  constitutes  the  supreme  authority,  so 
wherever  the  supreme  authority  in  any  state  resides,  it  is  the  right  of 
that  authority  to  make  laws;  that  is,  in  the  words  of  our  definition,  to 
prescribe  the  rule  of  civil  action.    Farther,  it  is  its  duty  likewise. 

I  proceed  now  to  the  latter  branch  of  the  definition:  that  it  is  a  rule 
so  prescribed,  ^  commanding  what  is  right,  and  prohibiting  ivhat  is 
•wrong."  2  [53] 

Now  in  order  to  do  this  completely,  it  is  first  of  all  necessary  that  the 
boundaries  of  right  and  wrong  be  established  and  ascertained  by  law. 
And  when  this  is  once  done,  it  will  follow  of  course  that  it  is  likewise 
the  business  of  the  law,  considered  as  a  rule  of  civil  conduct,  to  enforce 
these  rights  and  to  restrain  or  redress  these  wrongs.  It  remains  there- 
fore only  to  consider  in  what  manner  the  law  is  said  to  ascertain  the 
boundaries  of  right  and  wrong,  and  the  methods  which  it  takes  to  com- 
mand the  one  and  prohibit  the  other. 

1.  In  England  Parliament  is  not  re-  tations      imposed      upon      legislation 

strained  by  any  written  constitution  by   written  constitutions,   the  nature 

and  is  hence  omnipotent.     The  term  of  which  will  be  explained  in  another 

"  constitution "    will    be    further    ex-  place. 

plained  later  on.  In  the  United  States         2.  See  comments  on  this  subject  in 

and  the  several  states  there  are  limi-  notes  ante. 


Sect.  2.]  The  Nature  of  Laws.  9 

For  this  purpose  every  law  may  be  said  to  consist  of  several  parts: 

one  declaratory,  whereby  the  rights  to  be  observed  and  the  wrongs  to  be 
eschewed  are  clearly  defined  and  laid  down;  another  directory,  whereby 
the  subject  is  instructed  and  enjoined  to  observe  those  rights  and  to 
abstain  from  the  commission  of  those  wrongs;  a  third  remedial,  whereby 
a  method  is  pointed  out  to  recover  a  man's  private  rights  or  redress  his 
private  wrongs:  to  which  may  be  added  a  fourth,  usually  termed  the 
sanction,  or  vindicatory  branch  of  the  law;  whereby  it  is  signified  what 
evil  or  penalty  shall  be  incurred  by  such  as  commit  any  public  wrongs 
and  transgress  or  neglect  their  duty.  [54] 

With  regard  to  the  first  of  these,  the  declaratory  part  of  the  municipal 
law,  this  depends  not  so  much  upon  the  law  of  revelation  or  of  nature, 
as  upon  the  wisdom  and  will  of  the  legislator.  The  declaratory  part  of 
the  municipal  law  has  no  force  or  operation  at  all  with  regard  to  ac- 
tions that  are  naturally  and  intrinsically  right  or  wrong.  But  with  re- 
gard to  things  in  themselves  indifferent,  the  case  is  entirely  altered.  [55] 
These  become  either  right  or  wrong,  just  or  unjust,  duties  or  misde- 
meanors, according  as  the  municipal  legislator  sees  proper  for  promot- 
ing the  welfare  of  the  society  and  more  effectually  carrying  on  the  pur- 
poses of  civil  life.  And  sometimes,  where  the  thing  itself  has  its  rise 
from  the  law  of  nature,  the  particular  circumstances  and  mode  of  doing 
it  become  right  or  wrong  as  the  laws  of  the  land  shall  direct. 

The  directory  stands  much  upon  the  same  footing  [as  the  declaratory] ; 
for  this  virtually  includes  the  former,  the  declaration  being  usually  col- 
lected from  the  direction.  The  law  that  says,  "  Thou  shalt  not  steal," 
implies  a  declaration  that  stealing  is  a  crime.  And  we  have  seen  that, 
in  things  naturally  indifferent,  the  very  essence  of  right  and  wrong  de- 
pends upon  the  direction  of  the  laws  to  do  or  to  omit  them. 

The  remedial  part  of  a  law  is  so  necessary  a  consequence  of  the  former 
two,  that  laws  must  be  very  vague  and  imperfect  without  it.  [56]  For  in 
vain  would  rights  be  declared,  in  vain  directed  to  be  observed,  if  there 
were  no  method  of  recovering  and  asserting  those  rights  when  wrong- 
fully withheld  or  invaded.  This  is  what  we  mean  properly  when  we 
speak  of  the  protection  of  the  law. 

With  regard  to  the  sanction  of  laws,  or  the  evil  that  may  attend  the 
breach  of  public  duties,  it  is  observed  that  human  legislators  have  for  the 
most  part  chosen  to  make  the  sanction  of  their  laws  rather  vindicatory 
than  remunrratory,  or  to  consist  rather  in  punishments  than  in  actual 
particular  rewards.  Of  all  the  parts  of  a  law  the  most  effectual  is  the 
vindicatory.  [57]  The  main  strength  and  force  of  a  law  consists  in  the 
penalty  annexed  to  it.  Herein  is  to  be  found  the  principal  obligation  of 
human  laws. 

Interpretation  of  Laws.  The  fairest  and  most  rational 
method  to  interpret  the  will  of  the  legislator  is  by  exploring 


10  The  IsTatuee  of  Laws.  [Intro. 

his  intentions^  at  the  time  when  the  law  was  made,  by  signs 
the  most  natural  and  probable.  [59]  And  these  signs  are 
either  the  words,  the  context,  the  subject-matter,  the  effects 
and  consequence,  or  the  spirit  and  reason  of  the  law. 

1.  Words  are  generally  to  be  understood  in  their  usual 
and  most  known  signification,  not  so  much  regarding  the 
propriety  of  grammar  as  their  general  and  popular  use. 
Terms  of  art  or  technical  terms  must  be  taken  according 
to  the  acceptation  of  the  learned  in  each  art,  trade,  and 
science. 

2.  If  words  happen  to  be  still  dubious,  we  may  establish 
their  meaning  from  the  context,*  with  which  it  may  be  of 
singular  use  to  compare  a  w^ord  or  a  sentence  whenever  they 
are  ambiguous,  equivocal,  or  intricate.  [60]  Thus  the 
proeme,  or  preamble,  is  often  called  in  to  help  the  construc- 
tion of  an  act  of  parliament.  Of  the  same  nature  and  use 
is  the  comparison  of  a  law  with  other  laws  that  are  made 
by  the  same  legislator,  that  have  some  affinity  with  the 
subject,  or  that  expressly  relate  to  the  same  point. 

3.  As  to  the  subject-matter,  words  are  always  to  be  under- 
stood as  having  a  regard  thereto,  for  that  is  always  sup- 
posed to  be  in  the  eye  of  the  legislator,  and  all  his  expres- 
sions directed  to  that  end.^ 

4.  As  to  the  effects  and  consequence,  the  rule  is,  that 
w^here  words  bear  either  none,  or  a  very  absurd  significa- 

3.  The  real  intention  as  expressed  the  act,  it  may  avoid  the  whole  act. 
in  the  words  of  the  act  is  the  cardinal  In  the  case  of  deeds  the  first  deed  or 
force  in  the  interpretation  of  a  stat-  the  first  clause  shall  prevail  in  case 
ute.  It  also  has  a  controlling  effect  of  such  conflict,  while  in  the  case  of 
in    contracts,    wills,    etc.      Reference  a  will,  the  last  will   prevails. 

will  be  made  to  the  subject  farther  It  is  to  be  remarked  that  the  terms 

on  under  other  topics.  "  interpretation  "  and  "  construction  "■ 

4.  Every  written  instrument,  are  not  synonymous.  "  Interpreta- 
whether  it  be  a  statute,  contract,  tion "  refers  to  the  meaning  as  de- 
will,  etc.,  shall  be  so  interpreted  that  rived  from  the  words  of  the  instru- 
the  whole  may  stand  if  possible,  ment.  "  Construction "  includes  not 
rather  than  that  any  part  should  fail.  only  this  but  its  application  to  the 
Where  there  is  an  irreconcilable  con-  facts  of  some  case.  See  generally 
flict  of  one  part  of  a  statute  with  a  Dwarris  on  Statutes. 
constitutional   provision,   if   the   part  5.  See  ihe  next  preceding  note. 

80  in  conflict  is  an  essential  part  of 


Sect.  3.]  Of  the  Laws  of  England.     ~"  11 

tion,  if  literally  understood,  we  must  a  little  deviate  from 
the  received  sense  of  them.*' 

5.  But,  lastly,  the  most  universal  and  effectual  way  of 
discovering  the  true  meaning  of  a  law,  when  the  words  are 
dubious,  is  by  considering  the  reason  and  spirit  of  it,  or  the 
cause  which  moved  the  legislator  to  enact  it.  [61]  For 
when  this  reason  ceases,  the  l^w  itself  ought  likewise  to 
cease  with  it.^ 

From  this  method  of  interpreting  laws,  by  the  reason  of 
them,  arises  what  we  call  equity  [by  which  is  not  meant 
equity  or  chancery  jurisprudence],  which  is  thus  defined 
by  Grotius:  ''  The  correction  of  that  wherein  the  law  (by 
reason  of  its  universality)  is  deficient."  For  since  in  laws 
all  cases  cannot  be  forseen  or  expressed,  it  is  necessary  that, 
when  the  general  decrees  of  the  law  come  to  be  applied  to 
particular  cases,  there  should  be  somewhere  a  power  vested 
of  defining  those  circumstances,  which  (had  they  been  fore- 
seen) the  legislator  himself  would  have  expressed.  And 
these  are  the  cases  which,  according  to  Grotius,  "  lex  non 
exacte  definite  sed  arbitrio  boni  viri  permittit/'^ 


SECTION  III. 

OF   THE   LAWS   OF   ENGLAND. 

The  municipal  law  of  England  may  be  divided  into  two 
kinds:  the  lex  non  scripta,  the  unwritten,  or  common  law; 
and  the  lex  scripta,  the  written,  or  statute  law.    [63] 

6.  That  is,  so  as  to  give  them  a  a  good  judge."  A  court  has,  however, 
rational  rather  than  an  absurd  mean-  no  power  to  disregard  the  clear  provi- 
ing.  sions    of    a    statute;    although    greet 

7.  But  in  the  case  of  a  statute  un-  hardship  in  enforcing  it  may  afford 
fortunately  it  does  not  become  in-  an  argument  that  such  was  not  the 
valid  until  repealed  by  a  subsequent  intention  of  the  act.  In  a  criminal 
statute.  Customary  or  common  law  statute  such  hardship  or  injustice 
will  be  referred  to  later.  may    lay    the    ground    for    executive 

8.  "  The  law   does  not  exactly   de-  clemency, 
fine,  but  leaves  to  the   discretion  of 


12  Op  the  Laws  of  England.  [Intro. 

The  lex  non  scripta,  or  unwritten  law,  includes  not  only 
general  customs,  or  the  common  law  properly  so  called,  but 
also  the  particular  customs  of  certain  parts  of  the  kingdom ; 
and  likewise  those  particular  laws  that  are  by  custom  ob- 
served only  in  certain  courts  and  jurisdictions. 

The  monuments  and  evidences  of  our  legal  customs  are 
contained  in  the  records  of  the  several  courts  of  justice,  in 
books  of  reports  and  judicial  decisions,  and  in  the  treatises 
of  learned  sages  of  the  profession,  preserved  and  handed 
down  to  us  from  the  times  of  highest  antiquity,^  [64]  How- 
ever, I  therefore  style  these  parts  of  our  law  leges  non 
scriptae,  because  their  original  institution  and  authority 
are  not  set  down  in  writing,  as  acts  of  parliament  are,  but 
they  receive  their  binding  power  and  the  force  of  laws  by 
long  and  immemorial  usage,  and  by  their  universal  recep- 
tion throughout  the  kingdom. 

This  unwritten  or  common  law  is  properly  distinguish- 
able into  three  kinds:  1.  General  customs,  which  are  the 
universal  rule  of  the  whole  kingdom,  and  form  the  common 
law  in  its  stricter  and  more  usual  signification.  [67]  2. 
Particular  customs,  which  for  the  most  part  affect  only  the 
inhabitants  of  particular  districts.  3.  Certain  particular 
laws,  which  by  custom  are  adopted  and  used  by  some  par- 
ticular courts,  of  pretty  general  and  extensive  jurisdiction. 

I.  As  to  general  customs,  or  the  common  law  properly 
so  called,  this  is  that  law  by  which  proceedings  and  deter- 
minations in  the  king's  ordinary  courts  of  justice  are 
guided  and  directed.  [68]  This  for  the  most  part  settles 
the  course  in  which  lands  descend  by  inheritance;  the  man- 
ner and  form  of  acquiring  and  transferring  property;  the 
solemnities  and  obligation  of  contracts;  the  rules  of  ex- 
pounding wills,  deeds,  and  acts  of  parliament;  the  respec- 
tive remedies  of  civil  injuries;  the  several  species  of  tem- 
poral offenses,  with  the  manner  and  degree  of  punishment; 
and  an  infinite  number  of  minuter  particulars,  which  diffuse 

9.  The  law  as  administered  in  this  judged  cases  and  abridgments  and  di- 

country    is    contained    principally    in  gests     thereof,     and     in     text-books 

books  of  statutes,  public  and  private,  founded   upon    the    statutes   and    re- 

and  digests  thereof,  in  reports  of  ad-  ported  cases. 


Sect.  3.]  Of  the  Laws  of  England.  13 

themselves  as  extensively  as  the  ordinary  distribution  of 
common  justice  requires.^ 

These  customs  or  maxims  are  to  be  known,  and  their 
validity  determined,  by  the  judges  in  the  several  courts  of 
justice.^  [69]  They  are  the  depositaries  of  the  laws,  the 
living  oracles  who  must  decide  in  all  cases  of  doubt,  and 
who  are  bound  by  an  oath  to  decide  according  to  the  law 
of  the  land. 

Judicial  decisions  are  the  principal  and  most  authorative 
evidence  that  can  be  given  of  the  existence  of  such  a  custom 
as  shall  form  a  part  of  the  common  law.  The  judgment 
itself  and  all  the  proceedings  previous  thereto  are  carefully 
registered  and  preserved,  under  the  name  of  records,  in 
public  repositories  set  apart  for  that  particular  purpose; 
and  to  them  frequent  recourse  is  had  when  any  critical 
question  arises,  in  the  determination  of  which  former  pre- 
cedents may  give  light  or  assistance.^  It  is  an  established 
rule  to  abide  by  former  precedents  where  the  same  points 
come  again  in  litigation. 

This  rule  admits  of  exception  where  the  former  determi- 
nation is  most  evidently  contrary  to  reason;  much  more  if 
it  be  clearly  contrary  to  the  divine  law.  [70]  But  even  in 
such  cases  the  subsequent  judges  do  not  pretend  to  make  a 
new  law,  but  to  vindicate  the  old  one  from  misrepresenta- 
tion. For  if  it  be  found  that  the  former  decision  is  mani- 
festly absurd  or  unjust,  it  is  declared,  not  that  such  a  sen- 
tence was  bad  law,  but  that  it  was  not  law;  that  is,  that  it 
is  not  the  established  custom  of  the  realm,  as  has  been 
erroneously  determined.  The  doctrine  of  the  law  then  is 
this:  that  precedents  and  rules  must  be  followed,  unless 

1.  The  English  and  American  com-  state     of     Louisiana.       The     United 

men  law,  which  includes  the  law  mer-  States,  as  distinguished  from  the  sev- 

chant,  forms  the  greater  part  of  the  eral  states,  has  no  system  of  common 

jurisprudence  of  most  of  the  several  law  either  civil  or  criminal, 

states.      See    the    remarks   of   Caton,  2.  The  court  responds  to  questions 

C.  J.,  in  Cook  v.  Renick,  19  111.  602;  of  law,  the  jury  to  questions  of  fact, 

also,    Am.    Bar    Assn.    Rep.    1889,    p.  3.  These  judicial  decisions  in  prac- 

233;   1  Kent's  Com,  pt.  3,  p.  471.  tice   are   to   be  found   in   the   printed 

The  Roman  Civil  I-^w  forms  the  books  of  reports  of  the  various  courts, 
basis    of     the    jurisp  udence    of    the 


14  Of  the  Laws  of  England.  [Intro. 

flatly  absurd  or  unjust;  for  though  their  reason  be  not 
obvious  at  first  view,  yet  we  owe  such  a  deference  to  former 
times  as  not  to  suppose  that  they  acted  wholly  without 
consideration.^ 

Reports  are  histories  of  the  several  cases,  with  a  short 
summary  of  the  proceedings,  which  are  preserved  at  large 
in  the  record,  the  arguments  on  both  sides,  and  the  reasons 
the  court  gave  for  its  judgment,  taken  down  in  short  notes 
by  persons  present  at  the  determination.  [71]  And  these 
serve  as  indexes  to,  and  also  to  explain,  the  records,  which 
always,  in  matters  of  consequence  and  nicety,  the  judges 
direct  ta  be  searched.  The  reports  are  extant  in  a  regular 
series  from  the  reign  of  King  Edward  the  Second  inclusive, 
and  from  his  time  to  that  of  Henry  the  Eighth  were  taken 
by  the  prothonotaries,  or  chief  scribes  of  the  court,  at  the 
expense  of  the  crown,  and  published  annually,  whence  they 
are  known  under  the  denomination  of  the  year  hooks.  [72] 
From  the  reign  of  Henry  the  Eighth  to  the  present  time 
this  task  has  been  executed  by  many  private  and  contem- 
porary hands,  who  sometimes  through  haste  and  inaccu- 
racy, sometimes  through  mistake  and  want  of  skill,  hav^ 
published  very  crude  and  imperfect  (perhaps  contradic- 
tory) accounts  of  one  and  the  same  determination.^ 

4.  The  doctrine  stare  decisis,  that  usually  contains:  (1)  The 'style  of 
is  stand  upon  or  follow  the  decided  the  case,  i.  e.,  the  names  of  the  par- 
cases,  is  firmly  estaT>lished  in  the  law;  ties  plaintiff  and  defendant.  (2)  The 
indeed  it  may  be  said  to  be  the  foun-  headnotes  or  syllabus  stating  what 
dation  of  our  system  of  jurispru-  the  case  decides  and  sometimes  dicta, 
dence.  A  rule  once  firmly  established  indicated  by  the  words  "  semble  "  or 
by  the  decided  cases  should  be  fol-  "  it  seems."  (3)  The  court  from  which 
lowed  until  changed  by  statute.  This  the  case  is  appealed  and  the  manner 
rule  has  been  violated  in  some  in-  of  bringing  it  up  for  review,  as  by 
stances,  but  such  violations  seem  to  appeal  or  writ  of  error.  (4)  A  state- 
U3  to  be  usurpations  of  the  legislative  ment  of  the  facts  of  the  case  where 
function.  Dicta,  however,  that  is  they  are  not  sufficiently  stated  in  the 
statements  not  necessary  to  the  de-  opinion  of  the  court.  (5)  Names  of 
cision  of  the  case,  are  not  binding  counsel  and  often  a  summary  of  their 
upon  the  courts  in  subsequent  cases,  arguments  with  cases  cited  by  them. 

5.  In  this  country  reports  are  now  (6)  The  opinion  of  the  court,  either 
usually  prepared  and  published  by  of-  unanimous,  or,  if  not  so,  by  the  ma- 
ficial  reporters.     A  report  of  a  case  jority   concurring  and  the   judgment 


Sect.  3.]  Of  the  Laws  of  England.  15 

Besides  these  reporters,  there  are  also  other  authors,  to 
whom  great  veneration  and  respect  is  paid  by  the  students 
of  the  common  law.  Such  are  Glanvil  and  Bracton,  Britton 
and  Fleta,  Hengham  and  Littleton,  Statham,  Brooke,  Fitz- 
herbert,  Staundforde,  and  Coke,  with  some  others  of  ancient 
date,  whose  treatises  are  cited  as  authority,  and  are  evi- 
dence that  cases  have  formerly  happened,  in  which  such 
and  such  points  were  determined,  which  are  now  become 
settled  and  first  principles.*^ 

II.  The  second  branch  of  the  unwritten  laws  of  England 
are  particular  customs,  or  laws,  which  affect  only  the  in- 
habitants of  particular  districts.    [74]  ^ 

These  particular  customs,  or  some  of  them,  are  without  doubt  the  re- 
mains of  that  multitude  of  local  customs  out  of  which  the  common  law, 
as  it  now  stands,  was  collected  at  first  by  King  Afred,  and  afterwards  by 
King  Edgar  and  Edward  the  Confessor,  each  district  mutually  sacrific- 
ing some  of  its  own  special  usages  in  order  that  the  whole  kingdom  might 
«njoy  the  benefit  of  one  uniform  and  universal  system  of  laws.  But 
for.  reasons  that  have  been  now  long  forgotten,  particular  counties,  cities, 
towns,  manors,  and  lordships  were  very  early  indulged  with  the  privilege 
of  abiding  by  their  own  customs,  in  contradistinction  to  the  rest  of  the 
nation  at  large;  which  privilege  is  confirmed  to  them  by  several  acts  of 
parliament.  Such  are  the  customs  of  ^velkind  in  Kent,  and  some  other 
parts  of  the  kingdom;  of  Borough-English,  that  a  widow  shall  be  en- 
titled for  her  dower  to  all  her  husband's  lands,  &c.  [75] 

To  this  head  may  most  properly  be  referred  a  particular  system  of 
customs  used  only  among  one  set  of  the  King's  subjects,  or  lex  mercatoria 
[the  law  merchant] ;  which,  however,  different  from  the  general  rules  of 
the  common  law,  is  yet  ingrafted  into  it  and  made  a  part  of  it.'^^ 

The  rules  relating  to  particular  customs  regard  either  the  proof  of 
their  existence,  their  legality  when  proved,  or  their  usual  method  of 
allowance. 

thereon.      (7)    If    the   decision    is   by  the  reasons  and  arguments  they  con- 

3.  divided  court,  one  or  more  dissent-  tain  and  for  the  cases  they  cite. 

ing  opinions.     Tlie   student   will   find  7.  We  have  nothing  of  the  sort  in 

Wallace  on  the  Reporters  a  work  of  this   country.      See,   however,    usages 

great  value.  and  customs  as  incorporated  into  con- 

6.  Blackstone's    Commentaries    are  tracts,  considered  later  under  the  head 

now  also  oft^n  cited  as  an  authority  evidence,  contracts. 

on  the  common  law;  but  modern  trea-  7a.  The  law  merchant  is  a  part  of 

tises   on   the   law,   while   often   cited,  the  common  law.   See  Cook  v.  Renick, 

are   not   authorities   or  binding  upon  19  111.  602,  per  Caton,  C.  J. 
the  courts  and  are  valuable  only  for 


16  Of  the  Laws  of  England.  [Intro. 

First.  .All  private  customs  (except  gavelkind  and  borough-English,  of 
which  the  law  takes  particular  notice)  mnst  be  particularly  pleaded,  and 
as  well  the  existence  of  such  customs  must  be  shown,  as  that  the  thing 
in  dispute  is  within  the  custom  alleged.  [76] 

Second.  When  a  custom  is  actually  proved  to  exist,  the  next  inquiry  is 
into  the  legality  of  it.  To  make  a  particular  custom  good,  the  following 
are  necessary  requisites: — 

1.  That  It  have  been  used  so  long  that  the  memory  of  man  runneth  not 
to  the  contrary. 

2.  It  must  have  been  continued.  [77]  Any  interruption  would  cause  a 
temporary  ceasing;  the  revival  gives  it  a  new  beginning,  which  will  be 
within  titne  of  memory,  and  thereupon  the  custom  will  be  void.  But  this 
must  be  understood  with  regard  to  an  interruption  of  the  right,  for  an 
interruption  of  the  possession  only  for  ten  or  twenty  years  will  not 
destroy  the  custom.  But  if  the  right  be  any  how  discontinued  for  a  day, 
the  custom  is  quite  at  an  end. 

3.  It  must  have  been  peaceable  and  acquiesced  in,  not  subject  to  con- 
tention and-  dispute. 

4.  Customs  must  be  reasonable;  or,  rather,  taken  negatively,  they  must 
not  be  unreasonable. 

5.  Customs  ought  to  be  certain,  and  the  maxim  of  law  is,  id  cerium  est 
quod  cerium  reddi  potest^  [78] 

6.  Customs,  though  established  by  consent,  must  be  (when  established) 
compulsory,  and  not  left  to  the  option  of  every  man  whether  he  will  use 
them  or  no. 

7.  Lastly,  customs  must  be  consistent  with  each  other.  One  custom 
cannot  be  set  up  in  opposition  to  another.  For  if  both  are  really  customs, 
then  both  are  of  equal  antiquity  and  both  established  by  mutuial  consent, 
which  to  say  of  contradictory  customs  is  absurd. 

Third.  As  to  the  allowance  of  special  customs. 

Customs  in  derogation  of  the  common  law  must  be  construed  strictly. 

III.  The  third  branch  of  the  leges  non  scriptae  are  those 
peculiar  laws  which  by  custom  are  adopted  and  used  only 
in  certain  peculiar  courts  and  jurisdictions.  And  by  these 
I  understand  the  civil  and  canon  laws.    [79]  ^ 

8.  That  is  certain  which  can  be  law,  e.  g.,  in  the  law  of  bailments, 
made  certain.  Also    portions   of    these    jurisdictions 

9.  Not  a  part  of  the  American  law  applicable  to  our  condition  have  in 
except  that  the  Roman  civil  law  forms  this  country  been  vested  in  various 
the  basis  of  the  jurisprudence  of  courts,  e.  g.,  admiralty  jurisdiction 
Louisiana.  Many  rules  have,  how-  in  the  federal  courts,  etc.  See  post, 
ever,   been- adopted   into  the   English  Ck)urts. 

common    law    f.ora   the   Roman    civil 


Sect.  3.]  Of  the  Laws  of  England.  17 

It  may  seem  a  little  improper  at  first  view  to  rank  these  laws  under 
the  head  of  leges  non  scriptae,  or  unwritten  laws.  But  I  do  this,  after  the 
example  of  Sir  Matthew  Hale,  because  it  is  most  plain  that  it  is  not  on 
account  of  their  being  writ  ten  laws  that  either  the  canon  law  or  the  civil 
law  have  any  obligation  within  this  kingdom,  neither  do  their  force  and 
efficacy  depend  upon  their  own  intrinsic  authority,  which  is  the  case 
of  our  written  laws  or  acts  of  parliament.  But  all  the  strength  that  either 
the  papal  or  imperial  laws  have  obtained  in  this  realm,  or  indeed  in  any 
other  kingdom  in  Europe,  is  only  because  Ihey  have  been  admitted  and 
received  by  immemorial  usage  and  custom  in  some  particular  cases  and 
some  particular  courts;  and  then  they  form  a  branch  of  the  leges  non 
scriptae,  or  customary  laws,  or  else  because  they  are  in  some  other  cases 
introduced  by  consent  of  parliament,  and  then  they  owe  their  validity 
to  the  leges  scriptae,  or  statute  law.  [80] 

The  present  body  of  civil  law  was  compiled  and  finished  by  Tribonian 
and  other  lawyers  about  the  year  533.  [81] 

This  consists  of:  1.  The  institutes,  whdch  contain  the  elements  or  first 
principles  of  the  Roman  law  in  four  books;  2.  The  digests  or  paiideets 
in  fifty  books,  containing  the  opinions  and  writings  of  eminent  lawyers 
digested  in  a  systematical  method;  3.  A  new  code,  or  collection  or  im- 
perial constitutions  in  twelve  books,  the  lapse  of  a  whole  century  hav- 
ing rendered  the  former  code  of  Theodosius  imperfect;  4.  The  novels, 
or  new  constitutions,  posterior  in  time  to  the  other  books,  and  amount- 
ing to  a  supplement  to  the  code,  containing  new  decrees  of  successive 
emperors  as  new  questions  happened  to  arise.  These  form  the  body  of 
Roman  law,  or  corpus  juris  citilis,  as  published  about  the  time  of  Justinian. 

The  canon  law  is  a  body  of  Roman  ecclesiastical  law  relative  to  such 
matters  as  that  church  either  has  or  pretends  to  have  the  proper  jurisdic- 
tion over.  [82]  This  is  compiled  from  the  opinions  of  the  ancient  Latin 
fathers,  the  decrees  of  general  councils,  and  the  decretal  epistles  and 
buils  of  the  holy  see.  Besides  the  pontifical  collections,  which  during 
the  times  of  popery  were  received  as  authentic  in  this  island,  as  well 
as  in  other  parts  of  Christendom,  there  is  also  a  kind  of  natural  canon 
law,  composed  of  Icgatine  and  provincial  constitutions,  and  adapted  only 
to  the  exigencies  of  this  church  and  kingdom.  [83]  At  the  dawn  of  the 
reformation  in  the  reign  of  King  Henry  VIII,  it  was  enacted  in  parlia- 
ment that  a  review  should  be  had  of  the  canon  law;  and,  till  such  re- 
view should  be  made,  all  canons,  constitutions  ordinances,  and  synodals 
provincial  being  then  already  made  and  not  repugnant  to  the  law  of  the 
land  or  the  king's  prerogative,  should  still  be  used  and  executed.  And, 
as  no  such  review  has  yet  been  perfected,  upon  this  statute  now  depends 
the  authority  of  the  canon  law  in  England. 

There  are  four  species  of  courts  in  which  the  civil  and  canon  laws  are 
permitted,  under  different  restrictions,  to  be   used:     1.  The   courts  of 
the  archbishops  and  bishops  and  their  derivative  officers,  usually  called 
2 


18  Of  the  Laws  of  England.  [Intro. 

In  our  law  courts  Christian  {curiae  Christianilatis)',  or  the  ecclesiastical 
courts.  2.  The  military  coarts.  3.  The  courts  of  admiralty.  4.  The 
courts  of  the  two  universities.  In  all,  their  reception  in  general  and  the 
different  degrees  of  that  reception  are  grounded  entirely  upon  custom, 
corroborated  in  the  latter  instance  by  act  of  parliament  ratifying  those 
charters  which  confirm  the  customary  law  of  the  universities.  [84] 

1.  The  courts  of  common  law  have  the  superintendency  over  these 
courts:  to  keep  them  within  their  jurisdiction,  to  determine  wherein  they 
exceed  them,  to  restrain  and  prohibit  such  excess,  and,  in  case  of  con- 
tumacy, to  punish  the  officer  who  executes,  and  in  some  cases  the  judge 
who  enforces,  the  sentence  so  declared  to  be  illegal. 

2.  The  common  law  has  reserved  to  itself  the  exposition  of  all  such 
acts  of  parliament  as  concern  either  the  extent  of  these  courts  or  the 
matters  depending  before  them.  And,  therefore,  if  these  courts  either 
refuse  to  allow  these  acts  of  parliament  or  will  expound  them  in  any 
other  sense  than  what  the  common  law  puts  upon  them,  the  king's  courts 
at  Westminster  will  grant  prohibitions  to  restrain  and  control  them. 

3.  An  appeal  lies  from  all  these  courts  t«  the  king  in  the  last  resort. 

The  leges  scriptae  —  the  written  laws  of  the  kingdom  — 
are  statutes,  acts,  or  edicts  made  by  the  king's  majesty, 
by  and  with  the  advice  and  consent  of  the  lords  spiritual 
and  temporal  and  commons  in  parliament  assembled.  [85] 
The  oldest  of  these  now  extant  and  printed  in  our  statute 
books  is  the  famous  Magna  ChartaJ  as  confirmed  in  parlia- 
ment 9  Hen.  III. 

First,  Statutes  are  either  generar  or  special,  public  or 
private.^ 

1.  The  method  of  citing  these  acts  the  Pentateuch;  by  the  Cliristian 
of  parliament  is  various.  Many  of  church  in  distinguishing  their  hymns 
our  ancient  statutes  are  called  after  and  divine  offices;  by  the  Romanists 
the  name  of  the  place  where  tlie  par-  in  describing  their  papal  buUes;  and, 
liament  was  held  that  made  them;  in  short,  by  the  whole  body  of  an- 
as the  statutes  of  Merton  and  Marie-  cient  civilians  and  canonists,  among 
berge,  of  Westminster,  Gloucester  and  whom  this  method  of  citation  gener- 
Winchester.  Others  are  denominated  ally  prevailed,  not  only  with  regard 
entirely  from  their  subject,  as  the  to  chapters,  but  inferior  sections  also; 
statutes  of  Wales  and  Ireland,  the  in  imitation  of  all  which  we  still  call 
articuli  cleri,  and  the  praeogativa  some  of  our  old  statutes  by  their  in- 
regis.  Some  are  distinguished  by  itial  words,  as  the  statute  of  quia 
their  initial  words,  a  method  of  cit-  emptores,  and  that  of  circumspecte 
ing  very  ancient,  being  used  by  the  agatis.  But  the  most  usual  method 
Jews  in   denominating  the  books  of  of  citing   them,   especially  since   the 


Sect.  3.] 


Or  THE  Laws  of  England. 


19 


A  general  or  public  act  is  an  universal  rule  that  regards 
the  whole  community,  and  of  this  the  courts  of  law  are 
bound  to  take  notice  judicially  and  ex  officio  without  the 
statute  being  particularly  pleaded  or  formally  set  forth  by 
the  party  who  claims  an  advantage  under  it.  [86]  Special 
or  private  acts  are  rather  exceptions  than  rules,  being  those 
which  only  operate  upon  particular  persons  and  private 
concerns,  and  of  these  (which  are  not  promulgated  with 
the  same  notoriety  as  the  former)  the  judges  are  not  bound 
to  take  notice,  unless  they  be  formally  showm  and  plead ed.^ 

Statutes  also  are  either  declaratory  of  the  common  law 
or  remedial  of  some  defects  therein. 

Declaratory,  where  the  old  custom  of  the  kingdom  is 
almost  fallen  into  disuse  or  become  disputable,  in  which 
case  the  parliament  has  thought  proper,  in  perpetuum  rei 
testimonium,^  and  for  avoiding  all  doubts  and  difficulties, 
to  declare  what  the  common  law  is  and  ever  hath  been.* 


time  of  Edward  the  Second,  is  by 
naming  the  year  of  the  king's  reign 
in  which  the  statute  was  made,  to- 
gether with  the  chapter,  or  particular 
act,  accordmg  to  its  numeral  order, 
as  9  Geo.  IL,  c.  4,  for  all  the  acts  of 
one  session  of  parliament  taken  to- 
gether make  properly  but  one  stat- 
ute; and  therefore,  when  two  sessions 
have  been  held  in  one  year,  we  usu- 
ally mention  stat.  1  or  2.  Thus  the 
bill  of  rights  is  cited  as  1  W.  and  M. 
st.  2,  c.  2,  signifying  that  is  the  sec- 
ond chapter  or  act  of  the  second  stat- 
ute, or  the  laws  made  in  the  second 
session  of  parliament,  in  the  first 
year  of  king  William  and  Queen 
Mary.  See  generally  Wallace's  Re- 
porters; Dwarris  on  Statutes.  Ab- 
breviations used  in  Law  Books  by 
Chas.  C.  Soule  (153  pages),  will  be 
found  very  useful  to  the  student. 

2.  Books  of  statutes  in  the  United 
States   are   of   various   sorts:      Revi- 


sions or  Compilations;  Public  Acts; 
Private  Acts  and  Digests  of  Statutes. 
Private  acts  are  prohibited  in  some 
states  by  constitutional  enactment. 
See  generally  as  to  Public  and  Pri- 
vate Statutes,  Cooley's  Const.  Lim., 
§  97  et  seq.;  §  390  and  cases  cited. 

3.  For  a  perpetual  testimony  of  the 
thing. 

4.  '■'  It  is  always  competent  to 
change  an  existing  law  by  a  declara- 
tory statute;  and  where  the  statute 
is  only  to  operate  upon  future  cases 
it  is  no  objection  to  its  validity  that 
it  assumes  the  law  to  have  been  m 
past  what  it  is  now  declared  that  it 
shall  be  in  the  future.  But  the  leg- 
islative action  cannot  be  made  to 
retroact  upon  past  controversies  and 
to  reverse  decisions  which  the  courts 
in  the  exercise  of  their  undoubted  au- 
thority have  made."  Cooley's  Const. 
Lim.  (4th  Ed.),  §  94,  and  cases  cited. 
This  book  is  one  of  great  value  and 
cannot  be  to  carefully  studied. 


"0  Of  the  Laws  of  England.  [Intro. 

Remedial  statutes  are  those  which  are  made  to  supply 
such  defects  and  abridge  such  superfluities  in  the  common 
law  as  arise  either  from  the  general  imperfection  of  all 
human  laws,  from  change  of  time  and  circumstances,  from 
the  mistakes  and  unadvised  determinations  of  unlearned 
(or  even  learned)  judges,  or  from  any  other  cause  what- 
soever. And  this  being  done,  either  by  enlarging  the  com- 
mon law  where  it  was  too  narrow  and  circumscribed,  or  by 
restraining  it  where  it  was  too  lax  and  luxuriant,  hath 
occasioned  another  subordinate  division  of  remedial  acts 
01  parliament  into  enlarghiff  and  restraining  statutes.*^  [87] 

Secondly,  Rules  with  regard  to  the  construction  of 
statutes.^ 

1.  There  are  three  points  to  be  considered  in  the  con- 
struction of  all  remedial  statutes,  —  the  old  law,  the  mis- 
chief, and  the  remedy;  that  is,  how  the  common  law  stood 
at  the  making  of  the  act,  what  the  mischief  was  for  which 
the  common  law  did  not  provide,  and  what  remedy  the 
parliament  hath  provided  to  cure  this  mischief.  And  it  is 
the  business  of  the  judges  so  to  construe  the  acts  as  to  sup- 
press the  mischief  and  advancce  the  remedy. 

2.  A  statute  which  treats  of  things  or  persons  of  an  in- 
ferior rank  cannot  by  any  general  words  be  extended  to 
those  of  a  superior.   [88] 

3.  Penal  statutes  must  be  construed  strictly.^ 

4.  Statutes  against  frauds  are  to  be  liberally  and  ben- 
eficially expounded.  This  may  seem  a  contradiction  to  the 
last  rule,  most  statutes  against  frauds  being  in  their  con- 
sequences penal.  But  this  difference  is  here  to  be  taken: 
where  the  statute  acts  upon  the  offender  and  inflicts  a 
penalty,  as  the  pillory  or  a  fine,  it  is  then  to  be  taken 
strictly;  but  when  the  statute  acts  upon  the  offence,  by 

4a.  A  statute  giving  a  party  a  rem-  Ck)nstruction    and    Interpretation    of 

edy   for  a  wrong  where  he  had  none  Laws  (2d  Ed.),  1911. 

or  a  different  one  before,  is  also  called  6.  A  penal  statute  is  one  that  in- 

a  remedial  statute.  flicts  a  penalty  or  imposes  a  forfeit- 

5.  See  "  Interpretation  "  and  note,  ure.   and   is  not  to  be  extended  be- 

ante.     See,  also,  generally,   Black   on  yond  its  words. 


Sfx't.  3.]  Of  the  Laws  of  England.  21 

setting  aside  the  fraudulent  transaction,  here  it  is  to  be 
construed  liberally. 

5.  One  part  of  a  statute  must  be  so  construed  by  another 
that  the  whole  may  (if  possible)  stand  :^Mi  res  magis  valeat, 
qiiam  pereat.'^    [89] 

6.  A  saving  totally  repugnant  to  the  body  of  the  act  is 
void.^ 

7.  Where  the  common  law  and  a  statute  differ,  the  com- 
mon law  gives  place  to  the  statute,  and  an  old  statute  gives 
place  to  a  new  one.  But  this  is  to  be  understood  only  when 
the  latter  statute  is  couched  in  negative  terms,  or  where 
its  matter  is  so  clearly  repugnant  that  it  necessarily  implies 
a  negative.  But  if  both  acts  be  merely  affirmative,  and 
the  substance  such  that  both  may  stand  together,  here  the 
latter  does  not  repeal  the  former,  but  they  shall  both  have 
a  concurrent  efficacy.    [90] 

8.  If  a  statute  that  repeals  another  is  itself  repealed 
afterwards,  the  first  statute  is  hereby  revived  without  any 
formal  words  for  that  purpose.'^ 

9.  Acts  of  parliament  derogatory  from  the  power  of  sub- 
sequent parliaments  bind  not.  [See  Const.  U.  S.,  Art.  I., 
sec.  10,  relative  to  laws  impairing  the  obligation  of 
contracts.]^ 

10.  Lastly,  acts  of  parliament  that  are  impossible  to  be 
performed  are  of  no  validity;  and  if  there  arise  out  of  tliem 
collaterally  any  absurd  consequences  manifestly  contra- 
dictory to  common  reason,  they  are,  with  regard  to  those 
collateral  consequences,  void.  [91]  But  if  the  parliament 
will  positively  enact  a  thing  to  be  done  which  is  unreason- 
able, I  know  of  no  power  in  the  ordinary  forms  of  the  con- 
stitution that  is  vested  with  authority  to  control  it.^ 

7.  This  is  a  general  rule  of  con-  also  in  the  United  States  jurisdiction, 
struction  and  also  applies  to  con-  Repeals  by  implication  are  not  fa- 
tracts  and  wills,  etc.  vored. 

8.  See  1  Kent  Ck)m.,  pp.  462,  463.  1.  See   Cooley's    Const.     Lira.   (4th 

9.  This   rule   has   been   changed   by  Ed.)j  *126  and  cases  cited. 

etatute    in    some   of    the    states   and         2.  The  courts,  however,  will,  if  poa- 


22  CouNTKiES  Subject  to  Laws.  [Intko. 

SECTION  IV. 

OF  THE  COUNTRIES  SUBJECT  TO  THE  LAWS  OF  ENGLAND. 

The  kingdom  of  England,  over  which  our  municipal 
laws  have  jurisdiction,  includes  not,  by  the  common  law, 
either  Wales,  Scotland,  or  Ireland,  or  any  other  part  of 
the  king's  dominions,  except  the  territory  of  England  only.^ 
[93] 

The  kingdom  of  England  in  particular  comprehends  not 
only  Wales  and  Berwick  [by  statute],  but  also  part  of  the 
sea.  The  main  or  high  seas  are  part  of  the  realm  of  Eng- 
land, for  thereon  our  courts  of  admiralty^  have  jurisdic- 
tion; but  they  are  not  subject  to  the  common  law.  [110] 
This  main  sea  begins  at  the  low-water  mark.  But  between 
the  high-water  mark  and  the  low-water  mark,  where  the 
sea  ebbs  and  flows,  the  common  law  and  the  admiralty  have 
divisum  imperium,  an  alternate  jurisdiction,  —  one  upon 
the  wafer  when  it  is  full  sea,  the  other  upon  the  land  when 
it  is  an  ebb. 


The  territory  of  England  is  liable  to  two  divisions, — the  one  ecclesias- 
tical, the  other  civil,  [ill] 

1.  The  ecclesiastical  division  is,  primarily,  into  two  provinces,  those  of 
Canterbury  and  York.  A  province  is  the  circuit  of  an  archbishop's  juris- 
diction. Each  province  contains  divers  dioceses,  or  sees  of  suffragan 
bn'shops,  whereof  Canterbury  includes  twenty-one  [23]  and  York  three 
[7],  besides  the  bishopric  of  the  Isle  of  Man.     Every  diocese  is  divided 

sible,  give  a  statute  a  reasonable  in-  4.  The  constitution  of  the  United 
terpretation.  States  grants  to  the  federal  govern- 
In  the  United  States,  however,  a  nient  judicial  power  over  ♦  •  ♦ 
statute  may  be  declared  void  as  being  "  all  cases  of  admiralty  and  maritime 
in  conflict  with  either  the  constitu-  jurisdiction."  As  to  the  extent  of 
tion  of  the  United  States  or  of  a  this  grant,  see  Benedict's  Admiralty 
state.  (4th  Ed.),  pp.  5,  7,  11,  and  notes  in 
3.  See  1  Broom  &  Hadley's  Com-  which  the  cases  are  fully  cited,  also 
mentaries  on  the  Laws  of  England,  Hughes  on  Admiralty,  p.  7  ei  seq. 
Introduction,  sec.  4. 


Sect.  4.]  Countries  Subject  to  Laws.  23 

Into  archdeaconries,  whereof  there  are  sixty  in  all,  each  archdeaconry 
into  rural  deaneries,  which  are  the  circuit  of  the  archdeacon's  and  rural 
dean's  jurisdiction,  of  whom  hereafter,  and  every  deanery  is  divided  into 
parishes. 

A  parish  is  that  circuit  of  ground  which  is  committed  to  the  charge  of 
one  parson  or  vicar,  or  other  minister  having  cure  of  souls  therein. 

2.  The  civil  division  of  the  territory  of  England  is  into  counties,  of 
those  counties  into  hundreds,  of  those  hundreds  into  tithlngs  or 
towns.  [113] 


BOOK  THE   FIRST. 


OF  THE  RIGHTS  OF  PERSONS. 


CHAPTER  t 

OF    THE    ABSOLUTE    RIGHTS    OF    INDIVIDUALS. 

The  primary  and  principal  object  of  the  law  are  rights 
and  wrongs.   [122] 

Rights  are,  however,  liable  to  another  subdivision,  being 
either,  first,  those  which  concern  and  are  annexed  to  the 
persons  of  men,  and  are  then  called  jura  personarum,  or  the 
rights  of  persons;  or  they  are,  secondly,  such  as  a  man  may 
acquire  over  external  objects  or  things  unconnected  with 
his  person,  which  are  styled  jura  rerum,  or  the  rights  of 
things.^  Wrongs  also  are  divisible  into,"  first,  private 
wrongs,  which,  being  an  infringement  merely  of  particular 
rights,  concern  individuals  only,  and  are  called  civil  in- 
juries; and,  secondly,  public  icrongs,  which,  being  a  breach 
of  general  and  public  rights,  affect  the  whole  community^ 
and  are  called  crimes  and  misdemeanors. 

The  present  commentaries  will  consist  of  the  four  follow- 
ing parts :  1.  The  rights  of  persons,  with  the  means  whereby 
such  rights  may  be  either  acquired  or  lost;  2.  The  rights 
of  things,  with  the  means  also  of  acquiring  and  losing  them; 
3.  Private  tv^rongs,  or  civil  injuries,  with  the  means  of  re- 
dressing them  by  law;  4.  Public  wrongs  or  cirmes  and  mis- 
demeanors, with  the  means  of  prevention  and  punishment. 

First.  The  rights  of  persons,  with  the  means  of  acquir- 
ing and  losing  them. 

1.  See  Introduction  to  Hammond's      Justinian,  p.  I  et  seq.,  for  a  learned 

discussion  of  this  subject. 
£25] 


26  Absolute  Rights  of  Individuals.  [Book  I. 

The  rights  of  persons  that  are  commanded  to  be  observed 
by  the  municipal  law  are  of  two  sorts;  First,  such  as  are 
due  from  every  citizen,  which  are  usually  called  civil  duties; 
and,  secondly,  such  as  belong  to  him,  which  is  the  more 
popular  acceptation  of  rights  or  pvra.  [1231  Both  may 
indeed  be  comprised  in  this  latter  division;  for,  as  all  social 
duties  are  of  a  relative  nature,  at  the  same  time  that  they 
are  due  from  one  man  or  set  of  men,  they  must  also  be  due 
to  another.  But  it  will  be  more  clear  and  easy  to  consider 
many  of  them  as  duties  required  from,  rather  than  as  rights 
belonging  to,  particular  persons. 

Persons  also  are  divided  by  the  law  into  either  natural 
persons  or  artificial.  Natural  persons  are  such  as  the  God 
of  nature  formed  us;  artificial  are  such  as  are  created  and 
devised  by  human  laws  for  the  purposes  of  society  and 
government,  which  are  called  corporations  or  bodies 
politic.^ 

The  rights  of  persons  considered  in  their  natural  capaci- 
ties are  also  of  two  sorts,  —  absolute  and  relative.  Abso- 
lute, which  are  such  as  appertain  and  belong  to  particular 
men  merely  as  individuals  or  single  persons;  relative,  which 
are  incident  to  them  as  members  of  society  and  standing 
in  various  relations  to  each  other.    . 

By  the  absolute  rights  of  individuals  we  mean  those 
which  are  so  in  their  primary  and  strictest  sense,  such  as 
would  belong  to  their  persons  merely  in  a  state  of  nature, 
and  which  every  man  is  entitled  to  enjoy,  whether  out  of 
society  or  in  it.  But  with  regard  to  the  absolute  duties 
which  man  is  bound  to  perform,  considered  as  a  mere  in- 
dividual, it  is  not  to  be  expected  that  any  human  municipal 
law  should  at  all  explain  or  enforce  them.  [124]  For  the 
end  and  intent  of  such  laws  being  only  to  regulate  the  be- 
havior of  mankind,  as  they  are  members  of  society  and 
stand  in  various  relations  to  each  other,  they  have  conse- 
quently no  concern  with  any  other  but  social  or  relative 
duties.  But  with  respect  to  rights  the  case  is  different. 
Human  laws  define  and  enforce  as  well  those  rights  which 

2.  Considered  post. 


Chap.  I.]         Absolute  Rights  of  Individuals.  27 

belong  to  a  man  considered  as  an  individual  as  those  which 
belong  to  him  considered  as  related  to  others.  The  prin- 
cipal view  of  human  laws  is,  or  ought  always  to  be,  to  ex- 
plain, protect,  and  enforce  such  rights  as  are  absolute, 
which  in  themselves  are  few  and  simple,  and  then  such 
rights  as  are  relative,  which,  arising  from  a  variety  of  con- 
nections, will  be  far  more  numerous  and  more  complicated. 
[125] 

The  absolute  rights  of  man,  considered  as  a  free  agent, 
are  usually  summed  up  in  one  general  appellation,  and 
denominated  the  natural  liberty  of  mankind.  This  natural 
liberty  consists  properly  in  a  power  of  acting  as  one  thinks 
fit,  without  any  restraint  or  control  unless  by  the  law  of 
nature,  —  being  a  right  inherent  in  us  by  birth,  and  one 
of  the  gifts  of  God  to  man  at  his  creation,  when  he  endued 
him  with  the  faculty  of  free  will.  But  every  man,  when 
he  enters  into  society  gives  up  a  part  of  his  natural  liberty 
as  the  price  of  so  valuable  a  purchase,  and,  in  consideration 
of  receiving  the  advantages  of  mutual  commerce,  obliges 
himself  to  conform  to  those  laws  which  the  community  has 
thought  proper  to  establish.  Political,  therefore,  or  civil 
liberty,  which  is  that  of  a  member  of  society,  is  no  other 
than  natural  liberty  so  far  restrained  by  human  laws  (and 
no  farther)  as  is  necessary  and  expedient  for  the  general 
advantage  of  the  public" 

The  fundamental  articles  of  the  absolute  rights  of  every 
Englishman  (which,  taken  in  a  political  and  extensive 
sense,  are  usually  called  their  liberties)  have  been  from 
time  to  time  asserted  in  parliament  as  often  as  they  were 

3.  Referring  to  Civil  Liberty,  Judge  action  of  individual  members  of  the 
Cooley  in  his  work  on  Torts,  p.  *8,  political  society  as  are  needed  to  pre- 
states  that  writers  of  acknowledged  vent  what  would  be  injurious  to  other 
authority  employ  the  term  in  very  individuals  or  prejudicial  to  the  gen- 
different  sense.  "We  prefer  [says  eral  welfare  and  defining  political 
he]  to  distinguish  civil  from  political  liberty  as  consisting  in  an  effectual 
liberty,  defining  the  former  as  that  participation  of  the  people  in  the 
condition  in  which  rights  are  estab-  making  of  the  laws.  The  former  may 
lished  and  protected  by  means  of  such  exist  when  the  latter  in  absent." 
limitations   and   restraints    upon    the  Cooley  on  Torts,  §§  9-10. 


"28  Absolute  Rights  of  Individuals.  [Book  I. 

thought  to  be  in  danger.  [127]  First,  by  the  great  charter 
of  liberties,  which  was  obtained,  sword  in  hand,  from  King 
John,  and  afterwards,  with  some  alterations,  confirmed  in 
parliament  by  King  Henry  the  Third,  his  son,  —  w^hich 
charter  contained  very  few  new  grants,  but  was  for  the 
most  part  declaratory  of  the  principal  grounds  of  the  funda- 
mental laws  of  England.*  [128]  Afterwards  by  the  statute 
called  coniirmatio  cartarum,^  whereby  the  Great  Charter  is 
directed  to  be  allow^ed  as  the  common  law.  Next,  by  a 
multitude  of  subsequent  corroborating  statutes  (Sir  EdAvard 
Coke,  I  think,  reckons  thirty-two),  from  the  First  Edward 
to  Henry  the  Fourth.  Then,  after  a  long  interval,  by  the 
petition  of  right,  which  was  a  parliamentary  declaration 
of  the  liberties  of  the  people  assented  to  by  King  Charles 
the  First  in  the  begining  of  his  reign.  Then  the  habeas 
corpus  act,  passed  under  Charles  the  Second.  To  these 
succeeded  the  bill  of  rights,  or  declaration  delivered  by  the 
Lords  and  Commons  to  the  Prince  'and  Princess  of  Orange, 
13th  of  February,  1688,  and  afterwards  enacted  in  parlia- 
ment, when  they  became  king  and  queen.  Lastly,  these 
liberties  were  again  asserted  at  the  commencement  of  the 
present  century  in  the  act  of  settlement,  whereby  the  crown 
was  limited  to  his  present  Majesty's  illustrious  house. 

The  absolute  rights  of  individuals  may  be  reduced  to 
three  principal  or  primary  articles,  —  the  right  of  personal 
security,  the  right  of  personal  liberty,  and  the  right  of 
private  property  [129]  [to  wiiich  may  be  added  the  right 
of  free  exercise  and  enjoyment  of  religious  profession  and 
worship,  and  also,  in  a  state  of  society,  of  freedom  of  speech 
and  of  the  press.  ]^ 

4.  An  examination  of  the  various  6.  See  Const.  U.  S.  Amendments, 
state  and  the  United  States  constitu-  art.  I.;  2  Kent  Com.,  34;  Cooley's 
tions  will  show  that  many  provisions  Const.  Lim.  (4th  Ed.),  chaps.  12  and 
of  Magna  Charta  have  been  incorpo-  13.  In  these  chapters  (12  and  13) 
rated  in  the  various  bills  of  rights,  will  be  found  an  able  discussion  of 
E.  g.,  see  Const,  1870  of  111.,  art.  II.,  these  subjects  with  a  full  citation  of 
Bill  of  Rights;  U.  S.  Const.,  art.  V.  authorities. 

5.  Confirmation  of  the  charters. 


Chap.  I.]         Absolute  Rights  of  Individuals.  29 

I.  The  right  of  personal  security  consists  in  a  person's 
legal  and  uninterrupted  enjoyment  of  his  life,  his  limbs,  his 
body,  his  health,  and  his  reputation. 

1.  Life  is  a  right  inherent  by  nature  in  every  individual, 
and  begins  in  contemplation  of  law  as  soon  as  an  infant  is 
able  to  stir  in  the  mother's  womb.  For  if  a  woman  is  quick 
with  child,  and  by  a  potion  or  otherwise  killeth  it  in  her 
womb,  or  if  any  one  beat  her,  whereby  the  child  dieth  in 
her  body  and  she  is  delivered  of  a  dead  child,  this,  though 
not  murder,  was  by  the  ancient  law  homicide  or  man- 
slaughter. But  the  modern  law  doth  not  look  upon  this 
offence  in  quite  so  atrocious  a  light,  but  merely  as  a  heinous 
misdemeanor,^    [130] 

An  infant  in  ventre  sa  mere,  or  in  the  mother's  womb,  is 
supposed  in  law  to  be  born  for  many  purposes.  It  is  capable 
of  having  a  legacy  or  a  surrender  of  a  copyhold  estate  made 
to  it.  It  may  have  a  guardian  assigned  to  it,  and  it  is  en- 
abled to  have  an  estate  limited  to  its  use,  and  to  take  after- 
wards by  such  limitation  as  if  it  were  then  actually  born. 

2.  A  man's  limbs  (by  which  for  the  present  we  only  un- 
derstand those  members  which  may  be  useful  to  him  in 
fight,^  and  the  loss  of  which  alone  amounts  to  mayhem  by 
the  common  law)  are  also  the  gift  of  the  wise  Creator  to 
enable  him  to  protect  himself  from  external  injuries  in  a 
state  of  nature.  To  these  therefore  he  has  a  natural  in- 
herent right,  and  they  cannot  be  wantonly  destroyed  or 
disabled  without  a  manifest  breach  of  civil  liberty. 

Both  the  life  and  limbs  of  a  man  are  of  such  high  value 
in  the  estimation  of  the  law  of  England,  that  it  pardons 
even  homicide  if  committed  se  defendendo,^  or  in  order  to 
preserve  them.  If  a  man  through  fear  of  death  or  mayhem 
is  prevailed  upon  to  execute  a  deed  or  do  any  other  legal 
act,  these  though  accompanied  with  all  the  other  requisite 
solemnities,  may  be  afterwards  avoided,  if  forced  upon  him 

7,  See  post,  Criminal  Law.  battle  afar  off."     See  post,  Criminal 

8.  It    is    not    mayhem    at    common      Law. 

law   to   slit   a   man's   nose,   notwith-  9.  In  self-defense, 

standing  it  is  useful  to   "  smell  the 


30  Absolute  Rights  of  Individuals,  [Book  I. 

by  a  well-grounded  apprehension  of  losing  his  life,  or  even 
his  limbs,  in  case  of  his  non-compliance.  And  the  same  is 
also  a  sufficient  excuse  for  the  commission  of  many  misde- 
meanors. The  constraint  a  man  is  under  in  these  circum- 
stances is  called  in  law  duress,  of  which  there  are  two  sorts: 
duress  of  imprisonment,^  where  a  man  actually  loses  his 
liberty,  of  which  we  shall  presently  speak,  and  duress  per 
minas,  where  the  hardship  is  only  threatened  and  impend- 
ing, which  is  that  we  are  now  discoursing  of.  [131]  Duress 
per  minas  is  either  for  fear  of  loss  of  life,  or  else  for  fear 
of  mayhem  or  loss  of  limb.  And  this  fear  must  be  upon 
sufficient  reason.  A  fear  of  battery  or  being  beaten,  though 
never  so  well  grounded,  is  no  duress,  neither  is  the  fear  of 
having  one's  house  burned  or  one's  goods  taken  away  and 
destroyed;  because  in  these  cases,  should  the  threat  be  per- 
formed, a  man  may  have  satisfaction  by  recovering  equiva- 
lent damages,  but  no  suitable  atonement  can  be  made  for 
the  loss  of  life  or  limb.  [See,  however,  Swell's  Lead.  Cases, 
771-773,  and  cases  cited;  14  Am.  Law  Reg.  N.  S.  201.] 

These  rights  of  life  and  member  can  only  be  deternxined 
by  the  death  of  the  person,  which  was  formerly  accounted 
to  be  either  a  civil ^  or  natural  death.    [132] 

The  civil  death  commenced,  if  any  man  was  banished  or  abjured  the 
realm,  by  the  process  of  the  common  law,  or  entered  into  religion;  that 
is,  went  into  a  monastery  and  became  there  a  monk  professed:  in  which 
cases  he  was  absolutely  dead  in  law,  and  his  next  heir  should  have  his 

1.  See  the  subject  of  Duress  in  its  Skeate  v.  Bcale,  11  Ad.  &  Ell.  983, 
various  phases  fully  considered  and  duress  of  goods;  Sasportas  v.  Jcn- 
the  leading  cases  given  in  full  with  nings,  1  Bay,  s.  c.  470,  duress  of 
voluminous  notes  in  Ewell's  Lead,  goods.  As  to  who  may  avail  himself 
Cases  {1st  Ed.),  760-794.  The  fol-  of  duress,  see  Huscombe  v.  Standing, 
lowing  leading  cases  will  be  foxmd  Cro.  Jac,  187;  Thompson  v.  Lock- 
there  reported  and  annotated.  Step-  wood,  15  John.  256. 
ney  v.  Lloyd,  Cro.  Eliz.  647,  duress  2.  By  statute  in  many  states  vari- 
of  imprisonment;  Watkins  v.  Baird,  ous  disabilities,  besides  imprison- 
6  Mass.,  506,  abuse  of  legal  process;  ment,  are  imposed  upon  persons  con- 
Whitefield  v.  Longfellow.  13  Me.  146,  victed  of  felony.  Consult  the  rocal 
duress  per  minas  (by  threats)  ;  Ast-  statutes  and  constitutions.  See,  also, 
ley  V.  Reynolds,  2  Strange,  915;  s.  c,  U.  S.  Const.,  art.  3,  sec.  3,  clause  2{ 
2  Bamard-K.  B.  40,  duress  of  goods;  Avery  v.  Everett,  110  N.  Y.  317. 


CiiAr.  I.]         Absolute  Rights  of  Individuals.  31 

estate.  Since  the  Reformation  this  disability  is  held  to  be  abolished, 
as  is  also  the  disability  of  banishment  consequent  upon  abjuration,  by 
statute  21  Jac.  I.  c.  28.  [133] 

This  natural  life  cannot  legally  be  disposed  of  or  de- 
stroyed by  any  individual,  neither  by  the  person  himself, 
nor  by  any  other  of  his  fellow-creatures,  merely  upon  their 
own  authority.  Yet  nevertheless  it  may  be  frequently  for- 
feited for  the  breach  of  those  laws  of  society  which  are 
enforced  by  the  sanction  of  capital  punishments. 

''  Nullus  liber  homo/'  says  the  Great  Charter,  ^^  aliquo 
modo  destruatur,  nisi  per  legale  judicium  parium  suorum 
aut  per  legem  terrae."^  Which  words,  ^'aliquo  modo  de- 
strvxjiur,"  include  a  prohibition,  not  only  of  Jcilling  and 
maiming,  but  also  of  torturing,  and  of  every  oppression  by 
color  of  an  illegal  authority. 

3.  Besides  those  limbs  and  members  that  may  be  neces- ' 
sary  to  a  man  in  order  to  defend  himself  or  annoy  his 
enemy,  the  rest  of  his  person  or  body  is  also  entitled  by  the 
same  natural  right  to  security  from  the  corporal  insults  of 
menaces,  assaults,  beating,  and  wounding,  though  such  in- 
sults amount  not  to  destruction  of  life  or  member.    [134] 

4.  The  preservation  of  a  man's  health  from  such  prac- 
tices as  may  prejudice  or  annoy  it;  and 

5.  The  security  of  his  reputation  or  good  name  from  the 
arts  of  detraction  and  slander  are  rights  to  which  every 
man  is  entitled  by  reason  and  natural  justice,  since  without 
these  it  is  impossible  to  have  the  perfect  enjoyment  of  any 
other  advantage  or  right.^ 

n.  Personal  liberty  consists  in  the  power  of  locomotion, 
of  changing  situation,  or  moving  one's  person  to  whatso- 
ever place  one's  own  inclination  may  direct,  without  im- 
prisonment or  restraint  unless  by  due  course  of  law.  This 
is  a  right  strictly  natural.  The  laws  of  England  have  never 
abridged  it  without  sufficient  cause,  and  in  this  kingdom 

3.  No  freeman  shall  in  any  manner  4.  The  means  by  which  these  rights 

be  destroyed  unless  by  the  legal  judg-  are  protected  will  be  considered  later 

ment  of  his  peers  or  by  the  law  of  on. 
the  land. 


32  Absolute  Rights  of  Individuals.  [Book  I. 

it  cannot  ever  be  abridged  at  the  mere  discretion  of  the 
magistrate  without  the  explicit  permission  of  the  laws. 
Here  again  the  language  of  the  Great  Charter  is,  that  no 
freeman  shall  be  taken  or  imprisoned  but  by  the  lawful 
judgment  of  his  equals  or  by  the  law  of  the  land.'^    [135] 

By  31  Car.  II.  c.  2,  commonly  called  the  habeas  corpus 
act,"  the  methods  of  obtaining  the  writ  [of  habeas  corpus] 
are  so  plainly  pointed  out  and  enforced,  that,  so  long  as  this 
statute  remains  unimpeached,  no  subject  of  England  can 
be  long  detained  in  prison,  except  in  those  cases  in  which 
the  law  requires  and  justifies  such  detainer.  And,  lest  this 
act  should  be  evaded  by  demanding  unreasonable  bail  or 
sureties  for  the  prisoner's  appearance,  it  is  declared  by 
1  W.  and  M.  st.  2,  c.  2,  that  excessive  bail  ought  not  to  be 
required. 

The  confinement  of  the  person  in  any  wise  is  an  imprison- 
ment, so  that  the  keeping  a  man  against  his  will  in  a  private 
house,  putting  him  in  the  stocks,  arresting  or  forcibly  de- 
taining him  in  the  street,  is  an  imprisonment.  [136]  And 
the  law  so  much  discourages  unlawful  confinement,  that  if 
a  man  is  under  duress  of  imprisonment,  which  we  before 
explained  to  mean  a  compulsion  by  an  illegal  restraint  of 
liberty,  until  he  seals  a  bond  or  the  like,  he  may  allege  this 
duress,  and  avoid  the  extorted  bond.  But  if  a  man  be  law- 
fully imprisoned,  and,  either  to  procure  his  discharge  or 
on  any  other  fair  account,  seals  a  bond  or  a  deed,  this  is 
not  by  duress  of  imprisonment,  and  he  is  not  at  liberty  to 
avoid  it.  [137]  To  make  imprisonment  lawful,  it  must 
either  be  by  process  from  the  courts  of  judicature  or  by 
warrant  from  some  legal  officer  having  authority  to  commit 
to  prison,  which  warrant  must  be  in  writing,  under  the  hand 
and  seal  of  the  magistrate,  and  express  the  causes  of  the 
commitment,  in  order  to  be  examined  into  if  necessary  upon 

5.  See  Cooley's    Const.    Lira.    (4th  ities.     See   also,   Blackwell    on    Tax 

ed.),ch.  XI.  ( 82  pages ),  for  a  learned  Titles,  pp.  *6,   11. 

and  exhaustive  consideration   of  the  6.  See  the   various   state  constitu- 

protection  afforded  by  the  law  of  the  tions  and  art.  1,  sec.  9,  clause  2,  U.  S. 

land  with  a  full  citation  of  author-  Const. 


Chap.  I.]         Absolute  Rights  of  Individuals.  33 

a  Jmbeas  corpus.  If  there  be  no  cause  expressed,  the  jailer 
is  not  bound  to  detain  the  prisoner.^ 

A  natural  and  regular  consequence  of  this  personal  lib- 
erty is  that  every  Englishman  may  claim  a  right  to  abide 
in  his  own  country  so  long  as  he  pleases,  and  not  to  be 
driven  from  it  unless  by  the  sentence  of  the  law.  The  king, 
indeed,  by  his  royal  prerogative,  may  issue  out  his  writ  ne 
exeat  regno,^  and  prohibit  any  of  his  subjects  from  going 
into  foreign  parts  without  license.  But  no  power  on  earth, 
except  the  authority  of  parliament,  can  send  any  subject 
of  England  out  of  the  land  against  his  will  —  no,  not  even 
a  criminal.  For  exile  and  transportation  are  punishments 
at  present  unknown  to  the  common  law,  and  wherever  the 
latter  is  now  inflicted  it  is  either  by  the  choice  of  the  crim- 
inal himself  to  escape  a  capital  punishment,  or  else  by  the 
express  direction  of  some  modern  act  of  parliament.  To 
this  purpose  the  Great  Charter  declares  that  no  freeman 
shall  be  banished  unless  by  the  judgment  of  his  peers  or  by 
the  law  of  the  land.  Though  within  the  realm  the  king  may 
command  the  attendance  and  service  of  all  his  liegemen, 
yet  he  cannot  send  any  man  mU  of  the  realm,  even  upon 
the  public  service,  excepting  sailors  and  soldiers,  the  nature 
of  whose  employment  necessarily  implies  an  exception;  he 
cannot  even  constitute  a  man  lord  deputy  or  lieutenant  of 
Ireland  against  his  will,  nor  make  him  a  foreign  ambas- 
sador. [138]  For  this  might  in  reality  be  no  more  than  an 
honorable  exile. 

III.  The  third  absolute  right,  inherent  in  every  English- 
man, is  that  of  property,  which  consists  in  the  free  use,  en- 
joyment, and  disposal  of  all  his  acquisitions,  without  any 

7.  There  are  various  cases  in  which  mon,  may  in  certain  cases  be  issued 
an  arrest  may  be  justified  without  in  aid  of  equitable  remedies  in  order 
legal  process,  as,  for  example,  of  a  to  protect  the  defendant  from  defeat- 
child  by  his  parents  in  certain  cases,  ing  the  relief  sought  by  leaving  the 
arrests  without  warrant  of  a  person  state  or  removing  therefrom  his  prop- 
committing  a  felony,  etc.  These  cases  erty.  It  is  a  sort  of  process  to  compel 
will  be  considered  in  their  proper  the  giving  of  bail  in  equitable  cases, 
places.     See  Cooley  on  Torts,  §   174.  See    2   Bouvier    Law   Diet.,   ne   exeat 

8.  Let  him  not  depart  from  the  republica;  2  Kent  Com.,  32,  and  au- 
kingdom.   This  writ,  though  not  com-  thorities  cited. 

3 


34  Absolute  Rights  of  Individuals.  [Book  I. 

control  or  diminution  save  only  by  the  laws  of  the  land. 
Upon  this  principle  the  Great  Charter  has  declared  that  no 
freeman  shall  be  disseised  or  divested  of  his  freehold,  or 
of  his  liberties  or  free  customs,  but  by  the  judgment  of  his 
peers  or  by  the  law  of  the  land.^    [139] 

So  great,  moreover,  is  the  regard  of  the  law  for  private 
property,  that  it  will  not  authorize  the  least  violation  of  it, 
not  even  for  the  general  good  of  the  whole  community.  If 
a  new  road,  for  instance,  were  to  be  made  through  the 
grounds  of  a  private  person,  it  might  perhaps  be  extensively 
beneficial  to  the  public;  but  the  law  permits  no  man,  or  set 
of  men,  to  do  this  without  consent  of  the  owner  of  the  land. 
In  this  and  similar  cases  the  legislature  alone  can,  indeed 
frequently  does,  interpose  and  compel  the  individual  to 
acquiesce,  not  by  absolutely  stripping  the  subject  of  his 
property  in  an  arbitrary  manner,  but  by  giving  him  a  full 
indemnification  and  equivalent  for  the  injury  thereby 
sustained.^ 

No  subject  of  England  can  be  constrained  to  pay  any 
aids  or  taxes,  even  for  the  defence  of  the  realm  or  the  sup- 
port of  government,  but  such  as  are  imposed  by  his  own 
consent  or  that  of  his  representatives  in  parliament.^    [140] 

The  constitution  has  established  certain  other  auxiliary 
subordinate  rights  of  the  subject,  which  serve  principally 
as  outworks  or  barriers  to  protect  and  maintain  inviolate 
the  three  great  and  primary  rights  of  personal  security, 
personal  liberty,  and  private  property.   [141]    These  are, — 

1.  The  constitution,  powers,  and  privileges  of  parliament. 

2.  The  limitation  of  the  king's  prerogative  by  bounds  so 
certain  and  notorious  that  it  is  impossible  he  should  either 
mistake  or  legally  exceed  them  without  the  consent  of  the 
people. 

9.  See  notes,  ante.  even  destroyed,  as  in  case  of  the  de- 

1.  See     generally     Cooley's     Const.  struction    of    houses    to    prevent    the 

Lim.,  ch.  15;  Lewis  on  Eminent  Do-  spreading   of    a    fire,    pestilence,    etc. 

main;  Mills,  Em.  Dom.;  Nichols,  Em.  See  Cooley  on  Torts,  §  594  and  cases 

Dom. ;   Randolph,  Em.  Dom.;   1  Bou-  cited. 

vier  Law  Diet.  Em.  Dom.     In  cases         2.  See   generally   Cooley   on   Taxa- 

of   controlling  public  necessity,  also,  tion;  Blackwell  on  Tax  Titles. 

private    property    may    be   taken    or 


Chap.  L]         Absolute  Rights  of  Individuals.  35 

3.  The  right  of  applying  to  the  courts  of  justice  for  re- 
dress of  injuries.  The  emphatical  words  of  Magna  Charta, 
spoken  in  the  person  of  the  king,  who,  in  judgment  of  law 
(says  Sir  Edward  Coke),  is  ever  present  and  repeating 
them  in  all  his  courts,  are  these:  rmlli  vendemus,  nulli 
nc()ahimus,  aut  differemiis  rectum  vel  justitiain.^  ''And 
therefore  every  subject, ' '  continues  the  same  learned  author, 
'*  for  injury  done  to  him  in  bonis,  in  terris,  rcl  persona,'^  by 
any  other  subject,  be  he  ecclesiastical  or  temporal,  without 
any  exception,  may  take  his  remedy  by  the  course  of  the 
law,  and  have  justice  and  right  for  the  injury  done  to  him 
freely  without  sale,  fully  without  any  denial,  and  speedily 
without  delay." 

Not  only  the  substantial  part  or  judicial  decisions  of  the 
law,  but  also  the  formal  part  or  method  of  proceeding  can> 
not  be  altered  but  by  parliament.  [142]  The  king,  it  is 
true,  may  erect  new  courts  of  justice,  but  then  they  must 
proceed  according  to  the  old  established  forms  of  the  com- 
mon law. 

4.  If  there  should  happen  any  uncommon  injury,  or  in- 
fringement of  the  rights  before  mentioned,  w^hich  the  ordin- 
ary course  of  law  is  too  defective  to  reach,  there  still  re- 
mains a  fourth  subordinate  right  appertaining  to  every 
individual,  namely,  the  right  of  petitioning  the  king  or 
either  house  of  parliament  for  the  redress  of  grievances.^ 
[143]  Care  only  must  be  taken  lest,  under  the  pretence  of 
petitioning,  the  subject  be  guilty  of  any  riot  or  tumult,  as 
happened  in  the  opening  of  the  memorable  parliament  in 
1640. 

5.  The  fifth  auxiliary  right  of  the  subject  is  that  of  hav- 
ing arms  for  their  defence  suitable  to  their  condition  and 
degree,  and  such  as  are  allowed  by  law.^    [144] 

3.  To  none  will  we  sell,  to  none  The  statutory  prohibition  of  carry- 
will  we  deny  or  delay  right  or  justice.  ing    concealed    weapons    is    generally 

4.  In  goods,  lands,  or  person.  held     to     be     constitutional,     though 

5.  See  U.  S.  Const.  Amendments,  there  are  cases  to  the  contrary.  See 
art.  1,  also  the  several  state  consti-  Cooley  Const.  Lim.  {4th  ed.),  *350 
tutions.  note  and   cases   cited;   2  Bish.  Crim. 

6.  See   U.    S.    Const.    Amendments,  Law   (3d  ed.),  §  125. 
art.  2,  and  state  constitutions;  Cooley  / 
Const.  Lirp.,   'aSO. 


36  Of  the  Parliament.  [Book  I. 


CHAPTER  11. 

OF  THE  PARLIAMENT. 

The  most  universal  public  relation  by  which  men  are 
connected  together,  is  that  of  government:  namely,  as  gov- 
ernors or  governed;  or,  in  other  words,  as  magistrates  and 
people.  [146]  Of  magistrates,  some  also  are  supreme,  in 
whom  the  sovereign  power  of  the  state  resides;  others  are 
snhordinate ,  deriving  all  their  authority  from  the  supreme 
magistrate,  accountable  to  him  for  their  conduct,  and  acting 
in  an  inferior,  secondary  sphere. 

In  all  tyrannical  governments  the  supreme  magistracy, 
or  the  right  of  both  making  and  of  enforcing  the  laws,  is 
vested  in  one  and  the  same  man  or  one  and  the  same  body 
of  men;  and  wherever  these  two  powers  are  united  together, 
there  can  be  no  public  liberty.  But  where  the  legislative 
and  executive  authority  are  in  distinct  hands,  the  former 
will  take  care  not  to  intrust  the  latter  v/ith  so  large  a  power 
as  may  tend  to  the  subversion  of  its  ov/n  independence,  and 
therewith  of  the  liberty  of  the  subject.  With  us,  therefore, 
in  England,  this  supreme  power  is  divided  into  two 
branches:  the  one  legislative,  to  wit  the  parliament,  con- 
sisting of  king.  Lords,  and  Commons;  the  other  executive, 
consisting  of  the  king  alone.  ^   [147] 

I.  As  to  the  manner  and  time  of  assembling  of  parlia- 
ment. The  parliament  is  regularly  to  be  summoned  by  the 
king's  writ  or  letter,  issued  out  of  chancery  by  advice  of 
the  privy  council,  at  least  forty  [now  thirty-five]  days  be- 
fore it  begins  to  sit.  [150]  It  is  a  branch  of  the  royal 
prerogative  that  no  parliament  can  be  convened  by  its  own 
authority,  or  by  the  authority  of  any,  except  the  king  alone. 
Nor  is  it  an  exception  to  this  rule  that,  by  some  modern 
statutes,  on  the  demise  of  a  king  or  queen,  if  there  be  then 

no  parliament  in  being,  the  last  parliament  revives,  and  it 

■■ 

1.  In  the  United  States  and  the  ecufcive  and  judicial,  each  supreme 
several  states  there  are  three  co-ordi-  within  its  appropriate  sphere  and 
sate  departments,  the  legislative,  ex-      within  the  limits  of  the  constitution. 


CiTAP.  II.]  Of  the  Parliament.        '^  37 

is  to  sit  again  for  six  months,  unless  dissolved  by  the  succes- 
sor, for  this  revived  parliament  must  have  been  originally 
summoned  by  the  crown. 

By  the  statute  16  Car.  II.  c.  1,  it  is  enacted  that  the  sitting 
and  holding  of  parliaments  shall  not  be  intermitted  above 
three  years  at  the  most.  [153]  And  by  the  statute  1  W. 
and  M.  st.  2,  c.  2,  it  is  declared  to  be  one  of  the  rights  of 
the  people,  that  for  redress  of  all  grievances,  and  for  the 
amending,  strengthening,  and  preserving  the  laws,  parlia- 
ments ought  to  be  held  frequently.  And  this  indefinite 
frequency  is  again  reduced  to  a  certainty  by  statute  6  W. 
and  M.  c.  2,  which  enacts,  as  the  statute  of  Charles  the 
Second  had  done  ]3efore,  that  a  new  parliament  shall  be 
called  within  three  years  after  the  determination  of  the 
former.  [Owdng  to  the  fact  that  the  mutiny  act  and  sup- 
plies are  voted  for  only  one  year,  annual  sessions  are  now 
necessary.] 

II.  The  constituent  parts  of  a  parliament  are  the  king's 
majesty,  sitting  there  in  his  royal  political  capacity  and 
the  three  estates  of  the  realm,  the  Lords  Spiritual,  the  I^ords 
Temporal  (who  sit,  together  wdth  the  king,  in  one  house), 
and  the  Commons,  who  sit  by  themselves  in  another.  And 
the  king  and  these  three  estates  together  form  the  great 
corporation  of  body  politic  of  the  kingdom,  of  w^hich  the 
king  is  said  to  be  caputs  principium,  et  finis.^  For  upon 
their  coming  together  the  king  meets  them,  either  in  person 
or  by  representation,  without  w^iich  there  can  be  no  be- 
gining  of  a  parliament;  and  he  also  has  alone  the  power  of 
dissolving  them. 

It  is  highly  necessary  for  preserving  the  balance  of  the 
constitution  that  the  executive  power  should  be  a  branch, 
though  not  the  whole,  of  the  legislative.  [154]  The  total  ^ 
union  of  them  would  be  productive,  of  tyranny;  the  total  ■ 
disjunction  of  them,  for  the  present,  would  in  the  end  pro- 
duce the  same  effects,  by  causing  that  union  against  which 
it  seems  to  provide.  The  legislative  would  soon  become 
tyrannical,  by  making  continual  encroachments,  and  gradu- 

2.  The  head,  the  beginning  and  the   end. 


38  Of  the  Parliament.  [Book  I. 

ally  assuming  to  itself  the  rights  of  the  executive  power. 
To  hinder,  therefore,  any  such  encroachments  the  king  is 
himself  a  part  of  the  parliament;  and  as  this  is  the  reason 
of  his  being  so,  very  properly,  therefore,  the  share  of  legis- 
lation, which  the  constitution  has  placed  in  the  crown,  con- 
sists in  the  power  of  rejecting  rather  than  resolving, —  this 
being  sufficient  to  answer  the  end  proposed.^  And  herein 
indeed  consists  the  true  excellence  of  the  English  govern- 
ment, that  all  the  parts  of  it  form  a  mutual  check  upon  each 
other.  [155]  In  the  legislature,  the  people  are  a  check 
upon  the  nobility,  and  the  nobility  a  check  upon  the  people, 
by  the  mutual  privilege  of  rejecting  what  the  other  has 
resolved;  while  the  king  is  a  check  upon  both,  which  pre- 
serves the  executive  power  from  encroachments.  And  this 
very  executive  powder  is  again  checked  and  kept  within  due 
bounds  by  the  two  Houses,  through  the  privilege  they  have 
of  inquiring  into,  impeaching,*  and  punishing  the  conduct 
(not  indeed  of  the  king,  which  would  destroy  his  constitu- 
tional independence,  but,  which  is  more  beneficial  to  the 
public)  of  his  evil  and  pernicious  counsellors. 

[The  king's  majesty  is  the  subject  of  subsequent 
chapters.] 

The  Spiritual  Lords  consist  of  two  archbishops  and 
twenty-four  bishops,  and  at  the  dissolution  of  monastries 
by  Henry  VIII.  consisted  likewise  of  twenty-six  mitred 
abbots  and  two  priors,  —  a  very  considerable  body,  and  in 
those  times  equal  in  number  to  the  temporal  nobility.  But 
though  these  Lords  Spiritual  are  in  the  eye  of  the  law  a 
distinct  estate  from  the  Lords  Temporal,  and  are  so  dis- 
tinguished in  most  of  our  acts  of  parliament,  yet  in  practice 
they  are  usually  blended  together  under  the  one  name  of 
the  Lords.  They  intermix  in  their  votes,  and  the  majority 
of  such  intermixture  joins  both  estates.  [156]  And  from 
this  want  of  a  separate  assembly  and  separate  negative  of 
the  prelates,  some  writers  have  argued  very  cogently  that 

3.  The  veto  power  is  practically  ob-      United  States.     See  U.  S.  Const.,  art. 
Bolete  in  England  though  not  in  the      1,  sec.  7,  el.  2. 

4.  See  U.  S.  Const.,  art.  2,  sec.  4. 


Ohap.  II.]  Of  the  Parliament.  39 

the  Lords  Temporal  and  Spiritual  are  now  in  reality  only 
one  estate,  which  is  unquestionably  true  in  every  effectual 
sense,  though  the  ancient  distinction  between  them  still 
nominally  continues. 

The  Lords  Temporal  consist  of  all  the  peers  of  the  realm 
(the  bishops  not  being  in  strictness  held  to  be  such,  but 
merely  lords  of  parliament),  by  whatever  title  of  nobility 
distinguished,  dukes,  marquises,  earls,  viscounts,  or  barons. 
[157]  Some  of  these  sit  by  descent,  as  do  all  ancient  peers; 
some  by  creation,  as  do  all  new-made  ones;  others,  since 
the  union  with  Scotland,  by  election,  which  is  the  case  of 
the  sixteen  peers  who  represent  the  body  of  the  Scots  no- 
bility. Their  number  is  indefinite,  and  may  be  increased 
at  will  by  the  power  of  the  crown. 

The  Commons  consist  of  all  such  men  of  property  in  the 
kingdom  as  have  not  seats  in  the  House  of  Lords,  every 
one  of  which  has  a  voice  in  parliament,  either  personally 
or  by  his  representatives.  [158]  The  counties  are  repre- 
sented by  knights,  elected  by  the  proprietors  of  lands;  the 
citizens  and  boroughs  are  represented  by  citizens  and 
burgesses,  chosen  by  the  mercantile  part,  or  supposed  trad- 
ing interest  of  the  nation.   [159] 

The  number  of  English  representatives  is  513,  and  of  Scots  45;  in  all 
558  [652]).  And  every  member,  though  chosen  by  one  particular  dis- 
trict, when  elected  and  returned,  serves  for  the  whole  realm.  For  the 
end  of  his  coming  thither  is  not  particular,  but  general;  not  barely  to 
advantage  his  constituents,  but  the  common  wealth.  And  therefore  he  is 
not  bound,  like  a  deputy  in  the  United  Provinces,  to  consult  with  or  take 
the  advice  of  his  constituents  upon  any  particular  point,  unless  he  him- 
self thinks  it  proper  or  prudent  so  to  do. 

III.  We  are  next  to  examine  the  laws  and  customs  re- 
lating to  parliament  thus  united  together,  and  considered 
as  one  aggregate  body.    [160] 

The  power  and  jurisdiction  of  parliament  is  so  tran- 
scendent and  absolute,  that  it  cannot  be  confined,  either 
for  causes  or  persons,  within  any  bounds.  It  hath  sovereign 
and  uncontrollable  authority  in  the  making,  confirming, 
enlarging,  restraining,  abrogating,  repealing,  reviving,  and 


40  Of  the  Parliament.  [Book  I. 

expounding  of  laws,  concerning  matters  of  all  possible  de- 
nominations, ecclesiastical  or  temporal,  civil,  military,  mari- 
time, or  criminal:  this  being  the  place  where  that  absolute 
despotic  power,  which  must  in  all  governments  reside  some- 
where, is  intrusted  by  the  constitution  of  these  kingdoms. 
All  mischiefs  and  grievances,  operations  and  remedies,  that 
transcend  the  ordinary  course  of  the  laws  are  within  the 
reach  of  this  extraordinary  tribunal.  [161]  It  can  regulate 
or  new  model  the  succession  to  the  crown;  it  can  alter  the 
established  religion  of  the  land;  it  can  change  and  create 
afresh  even  the  constitution  of  the  kingdom  and  of  parlia- 
ments themselves,  —  it  can,  in  short,  do  everything  that  is 
not  naturally  impossible;  and  therefore  some  have  not 
scrupled  to  call  its  power,  by  a  figure  rather  too  bold,  the 
omnipotence  of  parliament.® 

The  whole  of  the  law  and  custom  of  parliament  has  its 
original  from  this  one  maxim, ' '  that  whatever  matter  arises 
concerning  either  House  of  parliament  ought  to  be  exam- 
ined, discussed,  and  adjudged  in  that  house  to  which  it 
relates,  and  not  elsewhere."^  [163]  Hence,  for  instance, 
the  Lords  will  not  suffer  the  Commons  to  interfere  in  set- 
tling the  election  of  a  peer  of  Scotland;  the  Commons  will 
not  allow  the  Lords  to  judge  of  the  election  of  a  burgess; 
nor  will  either  House  permit  the  subordinate  courts  of  law 
to  examine  the  merits  of  either  case.'^ 

The  privileges  of  parliament  are  likewise  very  large  and 
indefinite.  [164]  "And  the  determination  and  knowledge 
of  that  privilege  belongs  to  the  Lords  of  parliament,  and 
not  to  the  justices."  Privilege  of  parliament  was  princi- 
pally established  in  order  to  protect  its  members,  not  only 
from  being  molested  by  their  fellow-subjects,  but  also  more 
especially  from  being  oppressed  by  the  power  of  the  crown. 
The  dignity  and  independence  of  the  two  Houses  are  in 
great  measure  preserved  by  keeping  their  privileges  in- 

5.  In   this  country  both  the  state  6,  See  U.  S.  Cbnst.,  art.  1,  see.   5, 

and    federal   legislatures    are    limited  cl.   1. 

in  their  powers  by  written  constitu-  7.  See  U.  S.  Ck)nst.,  art.  1,  sec.   S, 

tions  and  any  statute  contrary  to  the  cl.  1. 
constitution  is  null  and  void. 


Chap.  II.]  Of  the  Pakliament.  41 

definite.  [These  privileges  are  circumscribed  by  law  and 
determined  by  precedent.]  Some,  however,  of  the  more 
notorious  privileges  of  the  members  of  either  House  are 
privilege  of  speech,  of  person,  of  their  domestics,  and  of 
their  lands  and  goods. 

As  to  the  first  privilege,  of  speech,^  it  is  declared  by  the 
statute  1  W.  and  M.  st.  2,  c.  2,  as  one  of  the  liberties  of  the 
people,  ''  that  the  freedom  of  speech  and  debates  and  pro- 
ceedings in  parliament  ought  not  to  be  impeached  or  ques- 
tioned in  any  court  or  place  out  of  parliament. ' '  And  this 
freedom  of  speech  is  particularly  demanded  of  the  king 
in  person  by  the  Speaker  of  the  House  of  Commons  at  the 
opening  of  every  new  parliament.  So  likewise  are  the  other 
privileges  of  persons,**  servants,  lands,  and  goods,  which 
are  immunities  as  ancient  as  Edward  the  Confessor.  [165] 
This  included  formerly  not  only  privilege  from  illegal  vio- 
lence, but  also  from  legal  arrests,  and  seizures  by  process 
from  the  courts  of  law.  And  still,  to  assault  by  violence 
a  member  of  either  House,  or  his  menial  servants,  is  a  high 
contempt  of  parliament,  and  there  punished  with  the 
utmost  severity.  Neither  can  any  member  of  either  House 
be  arrested  and  taken  into  custody,  unless  for  some  indict- 
able offence,  without  a  breach  of  the  privilege  of  parlia- 
ment. 

But  all  other  privileges  which  derogate  from  the  common 
law  in  matters  of  civil  right  are  now  at  an  end,  save  only 
as  to  the  freedom  of  the  member's  person,  which  in  a  peer 
(by  the  privilege  of  peerage)  is  forever  sacred  and  inviol- 
able, and  in  a  commoner  (by  the  privilege  of  parliament) 
for  forty  days  after  every  prorogation  and  forty  days  be- 
fore the  next  appointed  meeting,  which  is  now  in  effect  as 
long  as  the  parliament  subsists,  it  seldom  being  prorogued 
for  more  than  fourscore  days  at  a  time.  All  other  privileges 
which  obstruct  the  ordinary  course  of  justice   are  now 

8.  See  U.  S.  Ck)nst.,  art.  1,   sec.   6,  ing  therefrom;  but  there  is  no  privi- 
cl.  1.  lege  of  servants,  lands  or  goods.    See 

9.  In  this  country  privilege  of  per-  generally  Cooley's  Const.  Lim.  (4th 
son  extends  to  attendance  at  session  ed. ),  *134  et  seq. 

of  legislature  and  going  and  return- 


42  Of  the  Parliament.  [Book  I. 

totally  abolislied  by  statute  10  Geo.  III.  c.  50,  which  enacts 
that  any  suit  may  at  any  time  be  brought  against  any  peer 
or  member  of  parliament,  their  servants,  or  any  other  per- 
son entitled  to  privilege  of  parliament,  which  shall  not  be 
impeached  or  delayed  by  pretence  of  any  such  privilege, 
except  that  the  person  of  a  member  of  the  House  of  Com- 
mons shall  not  thereby  be  subjected  to  any  arrest  of  im- 
prisonment. 

The  only  way  by  which  courts  of  justice  could  anciently 
take  cognizance  of  privilege  of  parliament  was  by  writ  of 
privilege,  in  the  nature  of  a  supersedeas,  to  deliver  the 
party  out  of  custody  when  arrested  in  a  civil  suit.  But 
since  the  statute  12  W.  III.  c.  3,  which  enacts  that  no  privi- 
leged person  shall  be  subject  to  arrest  or  imprisonment,  it 
hath  been  held  that  such  arrest  is  irregular  ab  initio,  and 
that  the  party  may  be  discharged  upon  motion  [or  on 
habeas  corpus]. 

The  claim  of  privilege  hath  been  usually  guarded  with 
an  exception  as  to  the  case  of  indictable  crimes,  or,  as  it 
has  been  frequently  expressed,  of  treason,  felony,  and 
breach  (or  surety)  of  the  peace.  Whereby  it  seems  to  have 
been  understood  that  no  privilege  was  allowable  to  the 
members,  their  families  or  servants,  in  any  crime  whatso- 
ever, for  all  crimes  are  treated  by  the  law  as  being  contra 
pacem  doniini  rerjis.^  To  w^hich  may  be  added  that  a  few 
years  ago  the  case  of  writing  and  publishing  seditious 
libels  was  resolved  by  both  Houses  not  to  be  entitled  to 
privilege,  and  that  the  reasons  upon  which  that  case  pro- 
ceeded extended  equally  to  every  indictable  offence.  [167] 
So  that  the  chief,  if  not  the  only,  privilege  of  parliament  in 
such  cases  seems  to  be  the  right  of  receiving  immediate 
information  of  the  imprisonment  or  detention  of  any  mem- 
ber, with  the  reason  for  which  he  is  detained. 

IV.  The  laws  and  customs  relating  to  the  House  of  Lords  in  particular. 

Their  judicial  capacity  will  be  more  properly  treated  of  in  the  third  and 
fourth  books  of  these  Commentaries. 
They  hare  a  right  to  be  attended,  and  constantly  are,  by  the  judges 

1.  Against  the  king's  peace. 


Chap.  II.]  Of  the  Parliament.  43 

of  the  Court  of  Kingr's  Bench  and  Common  Pleas,  and  snch  of  the  Barons 
of  the  Exchequer  as  are  of  the  degree  *of  the  coif,  or  hare  been  made 
Serjeants  at  law;  as  likewise  by  the  king's  learned  counsel,  being  Ser- 
jeants, and  by  the  masters  of  the  court  of  chancery,  for  their  advice  in 
point  of  law,  and  for  the  greater  dignity  of  their  proceedings.  [168] 

Another  priTilege  is,  that  every  peer,  by  license  obtained  from  the 
king,  may  make  another  lord  of  parliament  his  proxy,  to  vote  for  him  in 
his  absence — a  privilege  which  a  member  of  the  other  House  can  by 
BO  means  have,  as  he  is  himself  but  a  proxy  for  a  multitude  of  other 
people. 

Each  peer  has  also  a  right,  by  leave  of  the  House,  when  a  vote  passes 
contrary  to  his  sentiments,  to  enter  his  dissent  on  the  journals  of  the 
House,  with  the  reasons  for  such  dissent,  which  is  usually  styled  his 
protest. 

All  bills,  likewise,  that  may  in  their  consequences  any  way  affect  the 
right  of  the  peerage  are  by  the  custom  of  parliament  to  have  their  first 
rise  and  beginning  in  the  House  of  Peers,  and  to  suffer  no  changes  or 
amendments  in  the  House  of  Commons. 


V.  The  peculiar  laws  and  customs  of  the  House  of  Com- 
mons relate  principally  to  the  raising  of  taxes  and  the  elec- 
tion of  members  to  serve  in  parliament.    [169] 

First,  with  regard  to  taxes,  it  is  the  ancient  indisputable 
privilege  and  right  of  the  House  of  Commons  that  all  grants 
of  subsidies  or  parliamentary  aids  do  begin  in  their  House  ^ 
and  are  first  bestowed  by  them,  although  their  grants  are 
not  effectual  to  all  intents  and  purposes  until  they  have 
the  assent  of  the  other  two  branches  of  the  legislature. 
[See  U.  S.  Const.,  Art.  1,  §  7.]  So  reasonably  jealous  are 
the  commons  of  this  valuable  privilege,  that  herein  they 
will  not  suffer  the  other  House  to  exert  any  power  but  that 
of  rejecting;  they  will  not  permit  the  least  alteration  or 
amendment  to  be  made  by  the  Lords  to  the  mode  of  taxing 
the  people  by  a  money  bill.     [170] 

[With  regard  to  the  elections  of  knights,  citizens,  and  burgesses  [170], 
the  qualifications  of  the  electors  and  of  the  persons  to  be  elected,  and  the 
method  of  proceeding  in  elections,  the  student  is  referred,  in  addition 
to  the  text  of  our  author,  to  1  Broom  and  Hadley's  Commentaries,  *204 
et  seq.] 

2.  See  U.  S.   Const.,  art.  1,  sec.   7,  cl,  1;  Id.,  sec.  8,  cl.  1. 


44  Of  the  Parliament.  [Book  T. 

VI.  The  method  of  making  laws  is  much  the  same  in  both 
Houses,  and  I  shall  touch  it  very  briefly,  beginning  in  the 
House  of  Commons.  [181]  For  despatch  of  business  each 
House  of  parliament  has  its  Speaker.  The  Speaker  of  the 
House  of  Lords,  whose  office  it  is  to  preside  there  and 
manage  the  formality  of  business,  is  the  Lord  Chancellor, 
or  Keeper  of  the  King's  Great  Seal,  or  any  other  appointed 
by  the  king's  commission;  and  if  none  be  so  appointed,  the 
House  of  Lords  (it  is  said)  may  elect.  The  Speaker  of  the 
House  of  Commons  is  chosen  by  the  House,  but  must  be 
approved  by  the  king.  And  herein  the  usage  of  the  two 
Houses  differs,  that  the  Speaker  of  the  House  of  Com- 
mons cannot  give  his  opinion  or  argue  any  question  in  the 
House  [except  upon  committee  of  the  whole] ;  but  the 
Speaker  of  the  House  of  Lords,  if  a  lord  of  parliament,  may. 

In  each  House  the  act  of  the  majority  binds  the  whole, 
and  this  majority  is  declared  by  votes  openly  and  publicly 
given. 

To  bring  a  bill  into  the  House,  if  the  relief  sought  by  it 
is  of  a  private  nature,  it  is  first  necessary  to  prefer  a  peti- 
tion, which  must  be  presented  by  a  member,  and  usually 
sets  forth  the  grievance  desired  to  be  remedied.  This  peti- 
tion (when  founded  on  facts  that  may  be  in  their  nature 
disputed)  is  referred  to  a  committee  of  members,  who  ex- 
amine the  matter  alleged,  and  accordingly  report  it  to  the 
House;  and  then  (or  otherwise,  upon  the  mere  petition) 
leave  is  given  to  bring  in  the  bill.  In  public  matters  the 
bill  is  brought  in  upon  motion  made  to  the  House,  without 
any  petition  at  all. 

The  persons  directed  to  bring  in  the  bill  present  it  in  a 
competent  time  to  the  House  drawn  out  on  paper,  with  a 
multitude  of  blanks  or  void  spaces  where  anything  occurs 
that  is  dubious  or  necessary  to  be  settled  by  the  parliament 
itself  (such  especially  as  the  precise  date  of  times,  the 
nature  and  quantity  of  penalties,  or  of  any  sums  of  money 
to  be  raised),  being  indeed  only  the  skeleton  of  the  bill. 
[182]  In  the  House  of  Lords,  if  the  bill  begins  there,  it  is 
(when  of  a  private  nature)  referred  to  two  of  the  judges  to 
examine  and  report  the  state  of  the  facts  alleged,  to  see  that 


Chap.  II.]  Of  the  Paeliament.  45 

all  necessary  parties  consent,  and  to  settle  all  points  of 
technical  propriety.  This  is  read  a  first  time,  and  at  a  con- 
venient distance  a  second  time ;  and  after  each  reading  the 
Speaker  opens  to  the  House  the  substance  of  the  bill,  and 
puts  the  question  whether  it  shall  proceed  any  farther.  The 
introduction  of  the  bill  may  be  originally  opposed,  as  the 
bill  itself  may  at  either  of  the  readings;  and  if  the  opposi- 
tion succeeds,  the  bill  must  be  dropped  for  that  session,  as 
it  must  also  if  opposed  with  success  in  any  of  the  subse- 
quent stages. 

After  the  second  reading  it  is  committed;  that  is,  referred 
to  a  committee,  wiiich  is  either  selected  by  the  House  in 
matters  of  small  importance,  or  else  upon  a  bill  of  conse- 
quence the  House  resolves  itself  into  a  Committee  of  the 
whole  House.  A  Committee  of  the  whole  House  is  com- 
posed of  every  member,  and  to  form  it  the  Speaker  quits 
the  chair  (another  member  being  appointed  chairman),  and 
may  sit  and  debate  as  a  private  member.  In  these  com- 
mittees the  bill  is  debated  clause  by  clause,  amendments 
made,  the  blanks  filled  up,  and  sometimes  the  bill  entirely 
new  modelled.  After  it  has  gone  through  the  committee 
the  Chairman  reports  it  to  the  House,  with  such  amend- 
ments as  the  committee  have  made,  and  then  the  House 
reconsiders  the  whole  bill  again,  and  the  question  is  re- 
peatedly put  upon  every  clause  and  amendment.  [183] 
When  the  House  hath  agreed  or  disagreed  to  the  amend- 
ments of  the  committee,  and  sometimes  added  new  amend- 
ments of  its  own,  the  bill  is  then  ordered  to  be  engrossed, 
or  written  in  a  strong  gross  hand  on  one  or  more  long  rolls 
(or  presses)  of  parchment  sewed  together.  When  this  is 
finished  it  is  read  a  third  time,  and  amendments  are  some- 
times then  made  to  it;  and  if  a  new  clause  be  added,  it  is 
done  by  tacking  a  separate  piece  of  parchment  on  the  bill, 
which  is  called  a  rider.  The  Speaker  then  again  opens 
the  contents,  and  holding  it  up  in  his  hands,  puts  the  ques- 
tion whether  the  bill  shall  pass.  If  this  is  agreed  to,  the 
title  to  it  is  then  settled.  After  this  one  of  the  members 
is  directed  to  carry  it  to  the  Lords  and  desire  their  concur- 
rence, who,  attended  by  several  more,  carrier  it  to  the  bar 


46  Of  the  Parliament.  [Book  I. 

of  the  House  of  Peers,  and  there  delivers  it  to  their  Speaker, 
who  comes  down  from  his  woolsack  to  receive  it. 

It  there  passes  through  the  same  forms  as  in  the  other 
House  (except  engrossing,  which  is  already  done),  and  if 
rejected  no  more  notice  is  taken,  but  it  passes  sub  silentio, 
to  prevent  unbecoming  altercations.  But  if  it  is  agreed  to, 
the  Lords  send  a  message  by  two  masters  in  chancery  (or, 
upon  matters  of  high  dignity  or  importance,  by  two  of  the 
judges)  that  they  have  agreed  to  the  same,  and  the  bill 
remains  with  the  Lords  if  they  have  made  no  amendment 
to  it.  But  if  any  amendments  are  made,  such  amendments 
are  sent  down  with  the  bill  to  receive  the  concurrence  of 
the  Commons.  If  the  Commons  disagree  to  the  amend- 
ments, a  conference  usually  follows  between  members 
deputed  from  each  House,  who  for  the  most  part  settle  and 
adjust  the  difference;  but  if  both  Houses  remain  inflexible 
the  bill  is  dropped.  If  the  Commons  agree  to  the  amend- 
ments the  bill  is  sent  back  to  the  Lords  by  one  of  the  mem- 
bers, with  a  message  to  acquaint  them  therewith.  [184] 
The  same  forms  are  observed,  mutatis  mutandis,  when  the 
bill  begins  in  the  House  of  Lords.^  But  when  an  act  of 
grace  or  pardon  is  passed,  it  is  first  signed  by  his  Majesty, 
and  then  read  once  only  in  each  of  the  Houses  without  any 
new  engrossing  or  amendment.  And  when  both  Houses 
have  done  with  any  bill  it  always  is  deposited  in  the  House 
of  Peers  to  wait  the  royal  assent,  except  in  the  case  of  a 
bill  of  supply,  which,  after  receiving  the  concurrence  of 
the  Lords,  is  sent  back  to  the  House  of  Commons. 

The  royal  assent  may  be  given  two  ways:  1.  In  person, 
when  the  king  comes  to  the  House  of  Peers  in  his  crown 
and  royal  robes,  and,  sending  for  the  Commons  to  the  bar, 
the  titles  of  all  the  bills  that  have  passed  both  houses  are 
read,  and  the  king's  answer  is  declared  by  the  clerk  of  the 
parliament  in  Norman-French.  2.  By  the  statute  33  Hen. 
VIII.  c.  21,  the  king  may  give  his  assent  by  letters  patent 
under  his  great  seal,  signed  with  his  hand,  and  notified  in 

3.  See  generally  as  to  the  enact- 
ment of  laws  in  this  country,  Cooley's 
Const.  Lim.,  ch.  6. 


Chap.  II.]  Of  the  Parliament.  47 

his  absence  to  both  Houses  assembled  together  in  the  high 
House.  [185]  And  when  the  bill  has  received  the  royal 
assent  in  either  of  these  ways  it  is  then,  and  not  before,  a 
statute  or  act  of  parliament. 

This  statute  or  act  is  placed  among  the  records  of  the 
kingdom,  there  needing  no  formal  promulgation  to  give  it 
the  force  of  a  law,  because  every  man  in  England  is,  in  judg- 
ment of  law,  party  to  the  making  of  an  act  of  parliament, 
being  present  thereat  by  his  representatives.  However,  a 
copy  thereof  is  usually  printed  at  the  king's  press  for  tlie 
information  of  the  whole  land. 

An  act  of  parliament  thus  made  is  the  exercise  of  the 
highest  authority  that  this  kingdom  acknowledges  upon 
earth.  It  hath  power  to  bind  every  subject  in  the  land  and 
the  dominions  thereunto  belonging,  —  nay,  even  the  king 
himself  if  particularly  named  therein.  And  it  cannot  be 
altered,  amended,  dispensed  with,  suspended,  or  repealed, 
but  in  the  same  forms  and  by  the  same  authority  of  parlia- 
ment.   [186] 

VII.  An  adjournment  is  no  more  than  a  continuance  of 
the  session  from  one  day  to  another,  as  the  word  itself  signi- 
fies, and  this  is  done  by  the  authority  of  each  House  separ- 
ately every  day,  and  sometimes  for  a  fortnight  or  a  month 
together.  But  the  adjournment  of  one  House  is  no  adjourn- 
ment of  the  other.^  Prorogation  puts  an  end  to  the  session, 
and  then  such  bills  as  are  only  begun  and  not  perfected 
must  be  resumed  de  novo  (if  at  all)  in  a  subsequent  session, 
whereas  after  an  adjournment  all  things  continue  in  the 
same  state  as  at  the  time  of  the  adjournment  made,  and 
may  be  proceeded  on  without  any  fresh  commencement. 

A  prorogation  is  the  continuance  of  the  parliament  from 
one  session  to  another,^  as  an  adjournment  is  a  continuation 
of  the  session  from  day  to  day.  [187]  This  is  done  by  the 
royal  authority,  expressed  either  by  the  Lord  Chancellor 
in  his  Majesty's  presence,  or  by  commission  from  the  crown, 

4.  See  U.  S.  Const.,  art.  1,  sec.  3,  111.  9;  Cooley's  Const.  Lim.,  *132. 
art.   2,  sec.   3;    People  v.   Hatch,   33  5,  Not  the  practice  in  this  country. 


48  Of  the  Paeliament.  [Book  I. 

or  frequently  by  proclamation.  Both  Houses  are  neces- 
sarily prorogued  at  the  same  time,  it  not  being  a  proroga- 
tion of  the  House  of  Lords  or  Commons,  but  of  the  parlia- 
ment. The  session  is  never  understood  to  be  at  an  end  until 
a  prorogation,  though  unless  some  act  be  passed  or  some 
judgment  given  in  parliament,  it  is  in  truth  no  session  at  all. 
A  dissolution  is  the  civil  death  of  the  parliament  and  this 
may  be  eifected  three  ways: — 

1.  By  the  king's  will,  expressed  either  in  person  or  by 
representation. 

2.  A  parliament  may  be  dissolved  by  the  demise  of  the 
crown,  [188]  This  dissolution  formerly  happened  imme- 
diately upon  the  death  of  the  reigning  sovereign.  But  the 
calling  a  new  parliament  immediately  on  the  inauguration 
of  the  successor  being  found  inconvenient,  and  dangers 
being  apprehended  from  having  no  parliament  in  being  in 
case  of  a  disputed  succession,  it  was  enacted  by  the  statutes 
7  and  8  W.  III.  c.  15,  and  6  Anne,  c.  7,  that  the  parliament 
in  being  shall  continue  for  six  months  after  the  death  of 
any  king  or  queen,  unless  sooner  prorogued  or  dissolved  by 
the  successor;  that  if  the  parliament  be  at  the  time  of  the 
king's  death  separated  by  adjournment  or  prorogation,  it 
shall,  notwithstanding,  assemble  immediately;  and  that  if 
no  parliament  is  then  in  being,  the  members  of  the  last 
parliament  shall  assemble  and  be  again  a  parliament. 

3.  Lastly,  a  parliament  may  be  dissolved  or  expire  by 
length  of  time.  [189]  As  our  constitution  now  stands,  the 
parliament  must  expire,  or  die  a  natural  death,  at  the  end 
of  every  seventh  year,  if  not  sooner  dissolved  by  the  royal 
prerogative. 


Chap.  III.]         Of  the  King  and  His  Title.  49 

CHAPTER  III. 

OF   THE  KING  AND  HIS   TITLE. 

The  supreme  executive  power  of  these  kingdoms  is  vested 
by  our  laws  in  a  single  person,  the  king  or  queen,  for  it 

matters  not  to  which'  sex  the  crown  descends,  but  the  person 
entitled  to  it,  whether  male  or  female,  is  immediately  in- 
vested with  all  the  ensigns,  rights,  and  prerogatives  of 
sovereign  power.    [190] 

The  grand  fundamental  maxim  upon  which  the  jus 
coronse,  or  right  of  succession  to  the  throne  of  these  kind- 
doms,  depends,  I  take  to  be  this:  *'  that  the  crow^n  is,  by 
common  law  and  constitutional  custom,  hereditary,  and  this 
in  a  manner  peculiar  to  itself;  but  that  the  right  of  inheri- 
tance may  from  time  to  time  be  changed  or  limited  by  act 
of  parliament,  under  which  limitations  the  crown  still  con- 
tinues hereditary."    [191] 


1.  First,  it  is  in  general  hereditary,  or  descendible  to  the  next  heir,  on 
the  death  or  demise  of  the  last  proprietor. 

2.  Secondly,  as  to  the  particular  mode  of  inheritance,  it  in  general  cor- 
responds with  the  feodal  path  of  descents,  chalked  out  by  the  common 
la^  in  the  succession  to  landed  estates,  yet  with  one  or  two  material  ex- 
ceptions. [193]  Among  the  females,  the  crown  descends  by  right  of 
primogeniture  to  the  eldest  daughter  only  and  her  issue,  and  not,  as  in 
common  inheritances,  to  all  the  daughters  at  once.  [194]  On  failure  of 
lineal  descendants,  the  crown  goes  to  the  next  collateral  relations  of  the 
late  king,  provided  they  are  lineally  descended  from  the  blood  royal. 
But  herein  there  is  no  objection  (as  in  the  case  of  common  descents)  to 
the  succession  of  a  brother,  an  uncle,  or  other  collateral  relation,  of  the 
half  blood,  provided  only  that  the  one  ancestor,  from  whom  both  are 
descended,  be  that  from  whose  veins  the  blood  royal  is  communicated  to 
each.  [195] 

3.  The  doctrine  of  hereditary  right  does  by  no  means  imply  an  inde- 
feasible right  to  the  throne.  It  is  unquestionably  in  the  breast  of  the 
supreme  legislative  authority  of  this  kingdom,  the  king  and  both  houses 
of  parliament,  to  defeat  this  hereditary  right,  and,  by  particular  entails, 
limitations,  and  provisions,  to  exclude  the  immediate  heir,  and  vest  the 
inheritance  in  any  one  else. 

4 


60  Of  THE  Kino  AND  His  TiTLB.  [Book  T. 

4.  Bat,  fourthly,  howerer,  the  crown  may  be  limited  or  transferred, 
it  still  retains  its  descendible  quality,  and  becomes  hereditary  in  the 
wearer  of  it.  [196]  And  hence  in  our  law  the  king  is  said  never  to  die,  in 
his  political  capacity,  though,  in  common  with  other  men,  he  is  subject 
to  mortality  in  his  natural;  because  immediately  upon  the  natural  death 
of  Henry,  William,  or  Edward,  the  king  survives  in  his  successor. 


Chap.  IV.]         Of  the  King's  Royal  Family.  51 


CHAPTER  IV. 

OF  THE  king's  KOYAL  FAMILY. 

The  queen  of  England  is  either  queen  regent,  qneen  consort,  or  qneen 
dowager.  [218] 

The  queen  regent,  regnant,  or  sorereign,  is  she  who  holds  the  crown 
in  her  own  right;  and  such  a  one  has  the  same  powers,  prerogatives, 
rights,  dignities,  and  duties,  as  if  she  had  been  a  king. 

The  queen  consort  is  the  wife  of  the  reigning  king;  and  she,  by  virtue 
of  her  marriage,  is  participant  of  divers  prerogatives  above  other  women. 

And  first,  she  is  a  public  person,  exempt  and  distinct  from  the  king, 
and  not,  like  other  married  women,  so  closely  connected  as  to  have  lost 
all  legal  or  separate  existence  so  long  as  the  marriage  continues.  For 
the  queen  is  of  ability  to  purchase  lands  and  to  convey  them,  to  make 
leases,  to  grant  copyholds,  and  do  other  acts  of  ownership  without  the 
concurrence  of  her  lord,  which  no  other  married  woman  can  do.  She  is 
also  capable  of  taking  a  grant  from  the  king,  which  no  other  wife  is 
from  her  husband.  The  queen  of  England  hath  separate  courts  and  of- 
fices distinct  from  the  king's,  not  only  in  matters  of  ceremony,  but  even 
of  law;  and  her  attorney  and  solicitor  general  are  entitled  to  a  place 
within  the  bar  of  his  majesty's  courts,  together  with  the  king's  counsel. 
[219]  She  may  likewise  sue  and  be  sued  alone,  without  joining  her  hus- 
band. She  may  also  have  a  separate  property  in  goods,  as  well  as  lands, 
and  has  a  right  to  dispose  of  them  by  will.  In  short,  she  is  in  all  legal 
proceedings  looked  upon  as  a  fem-e  sole,  and  not  as  a  feme  covert,  as  a 
single,  not  as  a  married  woman. 

-The  queen  hath  also  many  exemptions  and  minute  prerogatives.  For 
instance,  she  pays  no  toll,  nor  is  she  liable  to  any  amercement  in  any 
court.  But  in  general  unless  where  the  law  has  expressly  declared  her 
exempted,  she  is  upon  the  same  footing  with  other  subjects,  being  to  all 
intents  and  purposes  the  king's  subject,  and  not  his  equal. 

But  farther,  though  the  queen  is  in  all  respects  a  subject,  yet  in  point 
of  the  security  of  her  life  and  person,  she  is  put  on  the  same  footing  with 
the  king.  [222]  It  is  equally  treason  (by  the  statute  25  Edw.  III.)  to 
compass  or  imagine  the  death  of  our  lady  the  king's  companion,  as  of 
the  king  himself;  and  to  violate,  or  defile  the  queen  consort,  amounts 
to  the  same  high  crime,  as  well  in  the  person  committing  the  fact,  as 
in  the  queen  herself,  if  consenting. 

The  husband  of  a  queen  regnant  is  her  subject,  and  may  be  guilty  of 
high  treason  against  her;  but  in  the  instance  of  conjugal  infidelity,  he 
is  not  subjected  to  the  same  penal  restrictions.  [223] 

A  queen  dowager  is  the  widow  of  the  king,  and  as  such  enjoys  most 
of  the  privileges  belonging  to  her  as  queen  consort.     But  it  is  not  high 


52  Of  the  King's  Koyal  Family.  [Book  I. 

treason  to  conspire  her  death  or  to  violate  her  chastity,  because  the  suc- 
cession to  the  crown  is  not  thereby  endangered.  Yet  still,  pro  dignitate 
refjali,  no  man  can  marry  a  queen  dowager  without  special  license  from 
the  king,  on  pain  of  forfeiting  his  lands  and  goods.  But  she,  though 
an  alien  born,  shall  still  be  entitled  to  dower  after  the  king's  demise, 
which  no  other  alien  Is.  A  queen  dowager,  when  married  again  to  a 
subject,  doth  not  lose  her  regal  dignity,  as  peeresses  dowager  do  their 
peerage  when  they  marry  commoners. 

The  Prince  of  Wales,  or  heir  apparent  to  the  crown,  and  also  his 
royal  consort  and  the  princess  royal,  or  eldest  daughter  of  the  king,  are 
likewise  peculiarly  regarded  by  the  laws.  For  by  statute  25  Edw.  III.  to 
compass  or  conspire  the  death  of  the  former,  or  to  violate  the  chastity  of 
either  of  the  latter,  are  as  much  high  treason  as  to  conspire  the  death  of 
the  king  or  violate  the  chastity  of  the  queen. 

The  younger  sons  and  daughters  of  the  king,  and  other  branches  of 
the  royal  family  who  are  not  in  the  immediate  line  of  succession,  were 
little  farther  regarded  by  the  ancient  law  than  to  give  them  to  a  cer- 
tain degree  precedence  before  all  peers  and  public  officers,  as  well  ec- 
clesiastical as  temporal.  [224]  In  1718,  upon  a  question  referred  to  all 
the  judges  by  King  George  I.,  it  was  resolved,  by  the  opinion  of  ten 
against  the  other  two,  that  the  education  and  care  of  all  the  king's  grand- 
children while  minors  did  belong  of  right  to  his  Majesty,  as  king  of  this 
realm,  even  during  their  father's  life.  [225]  But  they  all  agreed  that  the 
care  and  approbation  of  their  marriages,  when  grown  up,  belonged  to  the 
king  their  grandfather.  And  the  judges  have  more  recently  concurred 
in  opinion  that  this  care  and  approbation  extend  also  to  the  presump- 
tive heir  of  the  crown;  though  to  what  other  branches  of  the  royal  family 
the  same  did  extend,  they  did  not  find  precisely  determined.  The  most 
freaiiant  instances  of  the  crown's  interposition  go  no  farther  than  nephews 
and  nieces;  but  examples  are  not  wanting  of  its  reaching  to  more  dis- 
tant collaterals.  [226] 


Chap.  V.]  Of  the  Councils.  53 

CHAPTER  V. 

OF  THE  COUNCILS  BELONGING  TO  THE   KINO. 

1.  The  first  of  these  is  the  hfgh  coart  of  parliament^  whereof  we  have 

already  treated  at  large.  [227] 

2.  Secondly,  the  peers  of  the  realm  are  by  their  birth  heredity  conn- 
selors  of  the  croMU,  and  may  be  called  together  by  the  king  to  impart 
their  advice  in  all  matters  of  importance  to  the  realm,  either  in  time  of 
parliament  or  (which  hath  been  their  principal  use)  when  there  is  no 
parliament  in  being.     [Obsolete.] 

Besides  this  general  meeting,  it  is  usually  looked  upon  to  be  the  right 
of  each  particular  peer  of  the  realm  to  demand  an  audience  of  the  king, 
and  to  lay  before  him  with  decency  and  respect  such  matters  as  he  shall 
judge  of  importance  to  the  public  weal.  [228] 

3.  A  third  council  belonging  to  the  king  are,  according  to  Sir  Edward 
Coke,  his  judges  of  the  courts  of  law  for  law  matters.  [229] 

4.  But  the  principal  council  belonging  to  the  king  is  his  privy  council, 
which  is  generally  called  by  way  of  eminence  the  council.  And  this  is  a 
noble,  honorable,  and  reverend  assembly  of  the  king  and  such  as  he 
wills  to  be  of  his  privy  council  in  the  king's  court  or  palace.  The  king's 
will  is  the  sole  constituent  of  a  privy  counselor,  anJ  this  also  regulates 
their  number.  Privy  counselors  are  made  by  the  king's  nomination  with- 
out either  patent  or  grant,  and  on  taking  the  necessary  oaths  they  be- 
come immediately  privy  counselors  during  the  life  of  the  king  that 
chooses  them,  but  subject  to  removal  at  his  discretion.  [230] 

[As  to  the  qualifications,  duty,  functions,  power,  and  privileges  of  the 
privy  council,  the  student  is  referred  to  1  Broom  &  Hadley's  Commen- 
taries, *272  et  seq.,  and  to  the  English  statutes  upon  the  subject  passed 
since'  the  time  of  our  author.] 

The  dissolution  of  the  privy  council  depends  upon  the  king's  pleasure, 
and  he  may,  whenever  he  thinks  proper,  discharge  any  particular  mem- 
ber, or  the  whole  of  it,  and  appoint  another.  [232]  By  the  common  law, 
also,  it  was  dissolved  ipso  facto  by  the  king's  demise,  as  deriving  all  its 
authority  from  him.  But  now,  to  prevent  the  inconvenience  of  having  no 
council  in  being  at  the  accession  of  a  new  prince,  it  is  enacted  by  statute 
6  Anne,  c.  7,  that  the  privy  council  shall  continue  for  six  months  after 
the  demise  of  the  crown,  unless  sooner  determined  by  the  successor. 


64  Op  the  King's  Duties.  [Book  I. 


CHAPTER  VI. 

OF  THE  king's  DUTIES. 

The  principal  doty  of  the  king  is  to  gOTern  his  people  according  to 
law.  [233] 

As  to  the  terms  of  the  original  contract  between  king  and  people,  these 
I  apprehend  to  be  now  couched  in  the  coronation  oath,  which  by  the 
statute  1  W.  and  M.  st.  1,  c.  6,  is  to  be  administered  to  every  king  and 
queen  who  shall  succeed  to  the  imperial  crown  of  these  realms  by  one 
of  the  archbishops  or  bishops  of  the  realm  in  the  presence  of  all  the 
people,  who  on  their  parts  do  reciprocally  take  the  oath  of  allegiance 
to  the  Crown.  [235]  This  coronation  oath  is  conceived  in  the  following 
terms: — 

The  archbishop  or  bishop  shall  say:  "Will  you  solemnly  promise  and 
swear  to  govern  the  people  of  this  kingdom  of  England  and  the  dominions 
thereto  belonging  according  to  the  statutes  in  parliament  agreed  on  and 
the  laws  and  customs  of  the  same?"  The  king  or  queen  shall  say:  "I 
solemnly  promise  so  to  do." — Archbishop  or  bishop.  "  Will  you  to  your 
power  cause  law  and  justice  in  mercy  to  be  executed  in  all  your  judg- 
ments?"— King  or  queen.  "  I  will." — Archbishop  or  bishop.  "  Will  you 
to  the  utmost  of  your  power  maintain  the  laws  of  God,  the  true  profes- 
sion of  the  gospel,  and  the  Protestant  Reformed  religion  established  by 
the  law?  And  will  you  preserve  unto  the  bishops  and  clergy  of  this 
realm,  and  to  the  churches  committed  to  their  charge,  all  such  rights 
and  privileges  as  by  law  do  or  shall  appertain  unto  them  or  any  of  them?" 
— King  or  queen.^"AU  this  I  promise  to  do."  After  this  the  king  or  queen,, 
laying  his  or  her  hand  upon  the  holy  gospels,  shall  say:  "  The  things  which 
I  have  here  before  promised  I  will  perform  and  keep,  so  help  me  God," 
and  then  shall  kiss  the  book. 


Chap.  VIL]         Of  the  King's  Pkerogative.  65 

CHAPTER  VII. 

OF   THE   king's    PKEROGATIVE. 

By  the  word  prerogatiye  we  usually  understand  that  special  pre-emi- 
nence which  the  king  hath  over  and  above  all  other  persons,  and  out  of 
the  ordinary  course  of  the  common  law,  in  right  of  his  regal  dignity. 
It  signifies  in  its  etymology  (from  prae  and  rogo)  something  that  is  re- 
quired or  demanded  before  or  in  preference  to  all  others.  [239] 

Prerogatives  are  either  direct  or  incidental.  The  direct  are  such  posi- 
tive, substantial  parts  of  the  royal  character  and  authority  as  are  rooted 
in  and  spring  from  the  king's  political  person,  considered  merely  by  it- 
self, without  reference  to  any  other  extrinsic  circumstance,  as  the  right 
of  sending  ambassadors,  of  creating  peers,  and  of  making  war  or 
peace.  [240]  But  such  prerogatives  as  are  incidental  bear  always  a  rela- 
tion to  something  else  distinct  from  the  king's  person,  and  are  indeed 
only  exceptions  in  favor  of  the  crown  to  those  general  rules  that  are  es- 
tablished for  the  rest  of  the  community,  such  as  that  no  costs  shall  be 
recovered  against  the  king;  that  the  king  can  never  be  a  joint-tenant; 
and  that  his  debt  shall  be  preferred  before  a  debt  to  any  of  his  subjects. 
Wg  will  at  present  only  dwell  upon  the  king's  substantive  or  direct 
prerogatives. 

These  substantive  or  direct  prerogatives  may  again  be  divided  into 
three  kinds:  being  such  as  regard,  first,  the  king's  royal  character;  sec- 
ondly, his  royal  authority;  and  lastly,  his  royal  income.  These  are  neces- 
sary to  secure  reverence  to  his  person,  obedience  to  his  commands,  and 
an  affluent  supply  for  the  ordinary  expenses  of  government. 

In  the  present  chapter  we  shall  only  consider  the  two  first  of  these 
divisions,  which  relate  to  the  king's  political  character  and  authority; 
or,  in  other  words,  his  dignity  and  regal  power ;  to  which  last  the  name 
of  prerogative  is  frequently  narrowed  and  confined.  [241] 

First,  then,  of  the  royal  dignity. 

I.  And  first,  the  law  ascribes  to  the  king  the  attribute 
of  sovereignty,  or  pre-eminence. 

Hence  it  is  that  no  suit  or  action  can  be  brought  against 
the  king,  even  in  civil  matters,  because  no  court  can  have 
jurisdiction  over  him.  For  all  jurisdiction  implies  superi- 
ority of  power.  ^    [242] 

1.  No  action  can  be  brought  against  as  prescribed  by  statute  or  constitu- 
the  United  States  or  a  state  except      tion. 


66  Of  the  King's  Peeeooative.  [Book  I. 

Hence  it  is  likewise,  that  by  law  the  person  of  the  king  is  sacred,  even 
though  the  measures  pursued  in  his  reign  be  completely  tyrannical  and 
arbitrary,  for  no  jurisdiction  upon  earth  has  power  to  try  hina  in  a 
criminal  way,  much  less  to  condemn  him  to  punishment. 

Are  then,  it  may  be  asked,  the  subjects  of  £ngland  totally  destitute  ot 
remedy  in  ease  the  crown  should  invade  their  rig-hts,  either  by  private 
injuries  or  public  oppressions?  [243]  To  this  we  may  answer,  that  the 
law  has  provided  a  remedy  in  both  cases. 

And  first,  as  to  private  injuries;  if  any  person  has,  in  point  of  property, 
a  just  demand  upon  the  king,  he  must  petition  him  in  his  court  of  chan- 
cery, where  his  chancellor  will  administer  right  as  a  matter  of  grace, 
though  not  upon  compulsion. 

irext,  as  to  cases  of  ordinary  pnblic  oppression,  where  the  vitals  of  the 
constitution  are  not  attacked,  the  law  hath  also  assigned  a  remedy.  [244] 
For  as  a  king  cannot  misuse  his  power  without  the  advice  of  evil  coun- 
sellors, and  the  assistance  of  wicked  ministers,  these  men  may  be  ex- 
amined and  punished.  The  constitution  has  therefore  provided,  by  means 
of  indictments  and  parliamentary  impeachments,  that  no  man  shall  dare 
to  assist  the  crown  in  contradiction  to  the  laws  of  the  land.  The  sup- 
position of  law  is,  that  neither  the  king  nor  either  house  of  parliament, 
collectively  taken,  is  capable  of  doing  any  wrong,  since  in  such  cases 
the  law  feels  itself  incapable  of  furnishing  any  adequate  remedy.  [245] 
For  which  reason  all  oppressions  which  may  happen  to  spring  from  any 
branch  of  the  sovereign  power  must  necessarily  be  out  of  the  reach  of  any 
stated  rule  or  express  legal  provision;  but  if  ever  they  unfortunately  hap- 
pen, the  prudence  of  the  times  must  provide  new  remedies  upon  new 
emergencies. 

II.  Besides  the  attribute  of  sovereignty,  the  law  also  ascribes  to  the 
king,  in  his  political  capacity,  absolute  perfection.  [246]  The  king  can  do 
no  wrong:  which  ancient  and  fundamental  maxim  is  not  to  be  under- 
stood as  if  everything  transacted  by  the  government  was  of  course  just 
and  lawful,  but  means  only  two  things.  First,  that  whatever  is  excep- 
tionable in  the  conduct  of  public  affairs  is  not  to  be  imputed  to  the  king, 
nor  is  he  answerable  for  it  personally  to  his  people.  And,  secondly,  it 
means  that  the  prerogative  of  the  crown  extends  not  to  do  any  injury, 
it  is  created  for  the  benefit  of  the  people,  and  therefore  cannot  be  ex- 
erted to  their  prejudice. 

The  king,  moreover,  is  not  only  incapable  of  doing  wrong,  bat  even  of 
thinking  wrong;  he  can  never  mean  to  do  an  improper  thing;  in  him 
Is  no  folly  or  weakness.  And,  therefore  if  the  crown  should  be  induced 
to  grant  any  franchise  or  privilege  to  a  subject  contrary  to  reason,  or  ia 
any  wise  prejudicial  to  the  commonwealth  or  a  private  person,  the  law 
will  not  suppose  the  king  to  have  meant  either  an  unwise  or  an  injurious 
action,  but  declares  that  the  king  was  deceived  in  his  grant,  and  there- 
upon such  grant  is  rendered  void,  merely  upon  the  foundation  of  fraud 


Chap.  VII. ]         Or  the  King's  Pkekogative.  67 

and  deception,  either  by  or  upon  those  agents  whom  the  crown  has 
thought  proper  to  employ. 

In  farther  pursuance  of  this  principle,  the  law  also  de- 
terminates that  in  the  king  can  be  no  negligence  or  lashes, 
and  therefore  no  delay  will  bar  his  right.  Nullum  tempus 
occurrit  rcgi^  has  been  the  standing  maxim  *  upon  all 
occasions. 

In  the  king  also  can  be  no  stain  or  corruption  of  blood;  for  if  the  heir 
to  the  crown  were  attainted  of  treason  or  felony,  and  afterwards  the 
crown  should  descend  to  him,  this  would  purge  the  attainder  ipso  facto. 
[248]  Neither  can  the  king  in  judgment  of  law,  as  king,  eyer  be  a  minor 
or  under  age,  and  therefore  his  royal  grants  and  assents  to  acts  of  par- 
liament are  good,  though  he  has  not  in  his  natural  capacity  attained  the 
legal  age  of  twenty-one.  It  hath  also  been  usually  thought  prudent, 
when  the  heir  apparent  has  been  very  young,  to  appoint  a  protector, 
guardian,  or  regent  for  a  limited  time.  But  the  very  necessity  of  such 
extraordinary  provision  is  sufficient  to  demonstrate  the  truth  of  that 
maxim  of  the  common  law,  that  in  the  king  is  no  minority,  and  therefore 
he  hath  no  legal  guardian. 

III.  A  third  attribute  of  the  king's  majesty  is  his  perpetuity.  The  law 
ascribes  to  him  in  his  political  capacity  an  absolute  immortality.  The 
king  never  dies.  [249]  Henry,  Edward,  or  George  may  die,  but  the  king 
survives  them  all.  For  immediately  upon  the  decease  of  the  reigning 
prince  in  his  natural  capacity,  his  kingship  or  imperial  dignity,  by  act 
of  law,  without  any  interregnum  or  interval,  is  vested  at  once  in  his  heir, 
who  is,  eo  instanti,  king  to  all  intents  and  purposes. 

We  are  next  to  consider  those  branches  of  the  royal  prerogative  which 
invest  thus  our  sovereign  lord,  thus  all-perfect  and  immortal  in  his 
kingly  capacity,  with  a  number  of  authorities  and  powers,  in  the  exer- 
tion whereof  consists  the  executive  part  of  gorernment.  [250]  The  king 
of  England  is  not  only  the  chief,  but  properly  the  sole,  magistrate  of  the 
nation,  all  others  acting  by  commission  from  and  in  due  subordination 
to  him.  In  the  exertion  of  lawful  prerogative  the  king  is  and  ought  to 
be  absolute;  that  is,  so  far  absolute  that  there  is  no  legal  authority  that 
can  either  delay  or  resist  him.  He  may  reject  what  bills  [now  obsolete], 
may  make  what  treaties,  may  coin  what  money,  may  create  what  peers, 
may  pardon  what  offences  he  pleases,  unless  where  the  constitution 
hath  expressly,  or  by  evident  consequence,  laid  down  some  exception  or 
boundary,  declaring  that  thus  far  the  prerogative  shall  go,  and  no  farther. 

2.  No  time  bars  the  king.  In  this  any  statute  of  limitations  unless  in- 
country  the   state   is  not  barred  by      eluded  therein  by  express  words. 


68  Of  the  King's  Prer6gative.  [Book  I. 

In  the  exertion,  therefore,  of  those  prerogatives  which  the  law  has 
given,  the  king  is  irresistible  and  absolute,  according  to  the  forms  of 
the  constitution.  And  yet,  if  the  consequence  of  that  exertion  be  mani- 
festly to  the  grievance  or  dishonor  of  the  kingdom,  the  parliament  will 
call  his  advisers  to  a  just  and  severe  account.  [252] 

The  prerogatives  of  the  crown  (in  the  sense  under  which 
we  are  noV  considering  them)  respect  either  this  nation's 
intercourse  with  foreign  nations,  or  its  own  domestic  gov- 
ernment and  civil  polity. 

With  regard  to  foreign  concerns,  the  king  is  the  delegate 
or  representative  of  his  people.  What  is  done  by  the  royal 
authority,  with  regard  to  foreign  powers,  is  the  act  of  the 
whole  nation;  what  is  done  without  the  king's  concurrence 
is  the  act  only  of  private  men. 

I.  The  king,  therefore,  considered  as  the  representative 
of.  his  people,  has  the  sole  power  of  sending  ambassadors 
to  foreign  states  and  receiving  ambassadors  at  home.^  [2531 

The  rights,  the  powers,  the  duties,  and  the  privileges  of 
ambassadors  are  determined  by  the  law  of  nature  and  na- 
tions, and  not  by  any  municipal  constitutions.  For,  as  they 
represent  the  persons  of  their  respective  masters,  who  owe 
no  subjection  to  any  laws  but  those  of  their  own  country, 
their  actions  are  not  subject  to  the  control  of  the  private 
law  of  that  state  wherein  they  are  appointed  to  reside.  If 
they  grossly  offend,  or  make  an  ill  use  of  their  character, 
they  may  be  sent  home  and  accused  before  their  master, 
who  is  bound  either  to  do  justice  upon  them  or  avow  him- 
self the  accomplice  of  their  crimes.  As  to  whether  this  ex- 
emption of  ambassadors  extends  to  all  crimes,  as  well 
natural  as  positive,  or  whether  it  only  extends  to  such  as 
are  mala  prohibita,  as  coining,  and  not  to  those  that  are 
mala  in  se,  as  murder,  the  general  practice  of  this  country, 
as  well  as  of  the  rest  of  Europe,  seems  now  to  be,  that  the 
security  of  ambassadors  is  of  more  importance  than  the 
punishment  of  a  particular  crime.*    [254] 

3.  The  U.  S.  constitution  provides,  appoint     ambassadors,     other     public 

art.    2.    sec.    2,    that    the    president  ministers,  and  consuls."    See  Wilson's 

"shall  nominate  and  by  and  with  the  Int.  Law,  162  et  seq. 

advice  and  consent  of  the  senate,  shall  4.  Wilson's  Int.  Law,  169,  170. 


Chap.  VII.]         Of  the  King's  Prejrogative.  59 

In  respect  to  civil  suits,  all  the  foreign  jurists  agree  that 
neither  an  ambassador,  nor  any  of  his  train  or  comites,  can 
be  prosecuted  for  any  debt  or  contract  in  the  courts  of  that 
kingdom  wherein  he  is  sent  to  reside.^ 

II.  It  is  also  the  king's  prerogative  to  make  treaties, 
leagues,  and  alliances  with  foreign  states  and  princes.^ 
[257]  For  it  is  by  the  law  of  nations  essential  to  the  good- 
ness of  a  league  that  it  be  made  by  the  sovereign  power, 
and  then  it  is  binding  upon  the  whole  community;  and  in 
England  the  sovereign  power,  quoad  hoc,  is  vested  in  the 
person  of  the  king. 

III.  Upon  the  same  principle  the  king  has  also  the  sole 
prerogative  of  making  war  and  peace."  So  that,  in  order 
to  make  a  war  completely  effectual,  it  is  necessary  with  us 
in  England  that  it  be  publicly  declared  and  duly  proclaimed 
by  the  king's  authority;  and  then  all  parts  of  both  the  con- 
tending nations,  from  the  highest  to  the  lowest,  are  bound 
by  it.  [258]  And  wherever  the  right  resides  of  beginning 
a  national  war,  there  also  must  reside  the  right  of  ending 
it,  or  the  power  of  making  peace. 

IV.  But  as  the  delay  of  making  war  may  sometimes  be  detrimental  to 
individuals  who  have  suffered  by  depredations  from  foreign  potentates, 
our  laws  have  in  some  respects  armed  the  subject  with  powers  to  impal 
the  prerogative,  by  directing  the  ministers  of  the  crown  to  issue  letters 
of  marque  and  reprisal  upon  due  demand,  the  prerogative  of  granting 
which  is  nearly  related  to,  and  plainly  derived  from,  that  other  of  mak- 
ing war, — this  being  indeed  only  an  incomplete  state  of  hostilities,  and 
generally  ending  in  a  formal  declaration  of  war.  These  letters  are  grant- 
able  by  the  law  of  nations  whenever  the  subjects  of  on&  state  are  op- 
pressed and  injured  by  those  of  another,  and  justice  is  denied  by  that 
state  to  which  the  oppressor  belongs.  In  this  case  letters  of  marque  and 
reprisal  (words  used  as  synonymous,  and  signifying,  the  latter  a  taking 
in  return,  the  former  the  passing  the  frontiers  in  order  to  such  taking) 
may  be  obtained,  in  order  to  seize  the  bodies  or  goods  of  the  subjects  of 

5.  Wilson's  Int.  Law,  170.  ators  present  consent."    U.  S.  Const., 

6.  '"He  [the  president]  shall  have  art.  2,  sec.  2;  Wilson's  Int.  Law,  194. 
power  by  and  with  the  advice  and  7.  In  the  United  States  Congress 
consent  of  the  senate  to  make  trea-  alone  has  the  power  to  declare  war. 
ties,  provided  two-thirds  of  the  sen-  U.    S.   Const.,   art.    1,   sec.   8,   cl.   11. 

A  wise  and  most  salutary  provision. 


60  Of  the  King's  Pkebogative.  [Book  I. 

the  offending  state,  until  satisfaction  be  made,  wlierever  they  happen  to 
be  found.8    [259] 

V.  Upon  exactly  Uie  same  reason  stands  tbe  prerogative  of  granting 
safe-condncts,  without  which  by  the  law  of  nations  no  member  of  one 
society  has  a  right  to  intrude  into  another.  It  is  left  in  the  power  of  all 
states  to  take  such  measures  about  the  admission  of  strangers  as  they 
think  convenient,  those  being  ever  excepted  who  are  driven  on  the  coasts 
by  necessity,  or  by  any  cause  that  deserves  pity  or  compassion.  Great 
tenderness  is  shown  by  our  laws,  not  only  to  foreigners  in  distress,  but 
with  regard  also  to  the  admission  of  strangers  who  come  spontaneously. 
For  so  long  as  their  nation  continues  at  peace  with  ours,  and  they  them- 
selves behave  peaceably,  they  are  under  the  kine's  protection,  though 
liable  to  be  sent  home  whenever  the  king  sees  occasion.  [260]  But  no 
subject  of  a  nation  at  war  with  us  can,  by  the  law  of  nations,  come  into 
the  realm,  nor  can  travel  himself  upon  the  high  seas,  or  send  his  goods 
and  merchandise  from  one  place  to  another,  without  danger  of  being 
seized  by  our  subjects,  unless  he  has  letters  of  safe-condnct,  which  by 
divers  ancient  statutes  must  be  granted  under  the  king's  great  seal  and 
enrolled  in  chancery,  or  else  are  of  no  effect,  the  king  being  supposed 
the  best  judge  of  such  emergencies  as  may  deserve  exception  from  the 
general  law  of  arms.  But  passports  under  the  king's  sign-manual,  or 
licenses  from  his  ambassadors  abroad,  are  now  more  usually  obtained, 
and  are  allowed  to  be  of  equal  validity. 

These  are  the  principal  prerogatives  of  the  king  respecting  this  nation's 
intercourse  with  foreign  nations.  But  in  domestic  affairs  he  is  con- 
sidered in  a  great  variety  of  characters,  and  from  thence  there  arises  an 
abundant  number  of  other  prerogatives. 

I.  First,  he  is  a  constitnent  part  of  the  supreme  legislative  power,  and, 
as  such,  has  the  prerogative  of  rejecting  such  provisions  in  parliament 
as  he  judges  improper  to  be  passed.  [Now  obsolete.]  The  king  is  not 
bound  by  any  act  of  parliament  unless  he  be  named  therein  by  special 
and  particular  words.  The  most  general  words  that  can  be  devised 
("  any  person  or  persons,  bodies  politic,  or  corporate,"  &c.)  affect  not 
him  in  the  least,  if  they  may  tend  to  restrain  or  diminish  any  of  his 
rights  or  interests.  [262]  Yet,  where  an  act  of  parliament  is  expressly 
made  for  the  preservation  of  public  rights  and  the  suppression  of  public 
wrongs,  and  does  not  interfere  with  the  established  rights  of  the  crown, 
it  is  said  to  be  binding  as  well  upon  the  king  as  upon  the  subject;  and, 
likewise,  the  king  may  take  the  benefit  of  any  particular  act,  though  he 
be  not  especially  named. 

II.  The  king  is  considered  as  the  generalissimo,  or  the  first  in  military 
command,  within  the  kingdom.^    In  this  capacity,  therefore,  of  general 

8.  By  the  Const,  of  the  U.  S.,  art.  of  marque  and  reprisal.  This  power 
1,  §  10,  no  state  shall  grant  letters      is  vested  in  Congress,  art.  1,  §  8. 

9.  See  U.  S.  Const.,  art.  2,  §  2. 


Chap.  VII.]         Of  the  King's  Prerogative.  61 

of  the  kingdom,  the  king  has  the  sole  power  of  raising  and  regulating 
fleets  and  armies. 

It  is  partly  upon  the  same,  and  partly  upon  a  fiscal  foundation,  to  se- 
cure his  marine  revenue,  that  the  king  has  the  prerogative  of  appointing 
ports  and  havens,  or  such  places  only,  for  persons  and  merciiandise  to 
pass  into  and  out  of  the  realm,  as  he  in  his  wisdom  sees  proper.  [264] 

The  erection  of  beacons,  lighthouses,  and  sea-marks  is  also  a  branch 
of  the  royal  prerogative. 

To  this  branch  of  the  prerogative  may  also  be  referred  the  jfbwer 
vested  in  his  Majesty,  by  statutes  12  Car.  II.  c.  4,  and  29.  Geo.  II.  c.  16, 
of  prohibiting  the  exportation  of  arms  or  ammunition  out  of  this  king- 
dom, under  severe  penalties;  and  likewise  the  right  which  the  king  has, 
whenever  he  sees  proper,  of  confining  his  subjects  to  stay  Tvithin  the 
realm,  or  of  recalling  them  when  beyond  the  seas.  [265]  By  the  com- 
mon law  every  man  may  go  out  of  the  realm  for  whatever  cause  he 
pleaseth,  without  obtaining  the  king's  leave,  provided  he  is  under  no  in- 
junction of  staying  at  home.  And  at  present  everybody  has,  or  at  least 
assumes,  the  liberty  of  going  abroad  when  he  pleases.  [266]  Yet  un- 
doubtedly if  the  king,  by  writ  of  ne  exeat  regnum,  under  his  great  seal 
or  privy  seal,  thinks  proper  to  prohibit  him  from  so  doing,  or  if  the  king 
sends  a  writ  to  any  man,  when  abroad,  commanding  his  return,  and  in 
either  case  the  subject  disobeys,  it  is  a  high  contempt  of  the  king's  pre- 
rogative. 

III.  Another  capacity,  in  which  the  king  is  considered  in  domestic 
affairs,  is  as  the  foundation  of  justice  and  general  conservator  of  the 
peace  of  the  kingdom.  By  the  fountain  of  justice,  the  law  does  not  mean 
the  auithor  or  original,  but  only  the  distributor.  Justice  is  not  derived, 
from  the  king  as  from  his  free  gift,  but  he  is  the  steward  of  the  public 
to  dispense  it  to  whom  it  is  due.  He  is  not  the  spring,  but  the  reservoir 
from  whence  right  and  equity  are  conducted  by  a  thousand  channels  to 
every  individual.  He  has  alone  the  right  of  erecting  courts  of  judicature; 
for,  though  the  constitution  of  the  kingdom  hath  intrusted  him  with  the 
whole  executive  power  of  the  laws,  it  is -impossible,  as  well  as  improper, 
that  he  should  personally  carry  into  execution  this  great  and  extensive 
trust;  it  is  consequently  necessary  that  courts  should  be  erected  to  as- 
sist him  in  executing  this  power,  and  equally  necessary  that,  if  erected, 
they  should  be  erected  by  his  authority.  [267]  And  hence  it  is,  that  all 
jurisdictions  of  courts  are  either  mediately  or  immediately  derived  from 
the  crown,  their  proceedings  run  generally  in  the  king's  name,  they  pass 
under  his  seal,  and  are  executed  by  his  officers. 

It  is  probable,  and  almost  certain,  that  in  very  early  times,  before  our 
constitution  arrived  at  its  full  perfection,  our  kings  in  person  often  heard 
and  determined  causes  between  party  and  party.  But  at  present,  by  the 
long  and  uniform  usage  of  many  ages,  our  kings  have  delegated  their 
whole  judicial  power  to  the  judges  of  their  several  courts,  which  are  the 
grand  depositaries  of  the  fundamental  laws  of  the  kingdom  and  have 
gained  a  known  and  stated  jurisdiction,  regulated  by  certain  and  estab- 


(82  Of  the  King's  PRERoaAxivE.  [Book  I. 

lished  rules,  which  the  crown  itself  cannot  now  alter  but, by  act  of  parlia- 
ment. 

And  in  order  to  maintain  both  the  dignity  and  independ- 
ence of  the  judges  in  the  superior  courts,  it  is  enacted  by  the 
statute  13  W.  III.  c.  2,  that  their  commissions  shall  be  made 
(not,  as  formerly,  durante  hene  placito,^  but)  quamdiu  bene 
se  gesserint,^  and  their  salaries  ascertained  and  established, 
but  that  it. may  be  lawful  to  remove  them  on  the  address 
of  both  houses  of  parliament.  And  now,  by  the  noble  im- 
provements of  that  law,  in  the  statute  of  1  Geo.  III.  c.  23, 
enacted  at  the  earnest  recommendation  of  the  king  himself 
from  the  throne,  the  judges  are  continued  in  their  offices 
during  their  good  behavior,  notwithstanding  any  demise 
of  the  crown  (which  was  formerly  held  immediately  to 
vacate  their  seats),  and  their  full  salaries  are  absolutely 
secured  to  them  during  the  continuance  of  their  commis- 
sions.3    [268] 

In  criminal  proceedings,  or  prosecutions  for  offenses,  it  would  still  be 
a  higher  absurdity  if  the  king  personally  sat  in  judgment,  because,  in 
regard  to  these,  he  appears  in  another  capacity,  that  of  prosecutor.  All 
offences  are  either  against  the  king's  peace  or  his  crown  and  dignity, 
and  are  so  laid  in  every  indictment.  And  hence  also  arises  another 
branch  of  the  prerogative,  that  of  pardoning  offences;  for  it  is  reasonable 
that  he  only  who  is  injured  should  have  the  power  of  forgiving.^  [269] 

A  consequence  of  this  prerogative  is  the  legal  ubiquity  of  the  king. 
[270]  His  Majesty  in  the  eye  of  the  law  is  always  present  in  all  his 
courts,  though  he  cannot  personally  distribute  justice.  And  from  this 
ubiquity  it  follows  that  the  king  can  never  be  nonsuit,  for  a  nonsuit  is 
the  desertion  of  the  suit  or  action  by  the  non-appearance  of  the  plaintiff 
in  court.  For  the  same  reason  also,  in  the  forms  of  legal  proceedings, 
the  king  is  not  said  to  appear  ^y  his  attorney  as  other  men  do,  for  in  con- 
templation of  law  he  is  always  present  in  court. 

From  the  same  original,  of  the  king's  being  the  foundation  of  justice, 

1.  At  will    (of  the  king).  4.  The   pardoning    power,   with    us 

2.  During  good  behavior.  is    vested    in    the    president    of    the 

3.  In    tlie    Federal    Courts    and    in  United   States   and   in   the  governors 
Massachusetts  the  judges  hold  during  of   the   several   states.     See   Ck)oley'8 
good  behavior;    but   in   other   states,  Const.  Lim.,  *115,   116,  and  notes, 
they  are  elected  for  varying  terms  of 

years. 


OiiAP.  VII.]         Of  the  King's  Pberogative.  6B 

we  may  also  deduce  the  prerogatiTe  of  igsaing  proclamations,  which  is 
vested  in  the  king  alone.  These  proclamations  have  then  a  binding  force 
when  they  are  grounded  upon  and  enforce  the  laws  of  the  realm.  For 
though  the  making  of  laws  is  entirely  the  work  of  a  distinct  part,  the 
legislative  branch,  of  the  sovereign  power,  yet  the  manner,  time,  and 
circumstances  of  putting  those  laws  in  execution  must  frequently  be  left 
to  the  discretion  of  the  executive  magistrate.  And  therefore  his  consti- 
tutions or  edicts  concerning  these  points,  which  we  call  proclamations, 
are  binding  upon  the  subjects  where  they  do  not  either  contradict  the  old  • 
laws  or  tend  to  establish  new  ones,  but  only  enforce  the  execution  of 
such  laws  as  are  already  in  being  in  such  manner  as  the  king  shall 
judge  necessary. 

IV.  The  king  is  likewise  the  fountain  of  honor,  of  office,  and  of  privilege, 
and  this  in  a  different  sense  from  that  wherein  he  is  styled  the  fountain 
of  justice,  for  here  he  is  really  the  parent  of  them.  [271]  All  degrees  of 
nobility,  of  knighthood,  and  other  titles,  are  received  by  immediate  grant 
from  the  crown ;  either  expressed  in  writing  by  writs  or  letters-patent,  as 
in  the  creations  of  peers  and  baronets,  or  by  corporeal  investiture,  as  in 
the  creation  of  a  simple  knight.  [272] 

From  the  same  principle  also  arises  the  prerogative  of  erecting  and 
disposing  of  offices,  for  honors  and  offices  are  in  their  nature  convertible 
and  synonymous.  As  the  king  may  create  new  titles,  so  may  he  create 
new  offices;  but  with  this  restriction,  that  he  cannot  create  new  offices 
with  new  fees  annexed  to  them,  nor  annex  new  fees  to  old  offices,  for 
this  would  be  a  tax  upon  the  subject,  which  cannot  be  imposed  but  by 
act  of  parliament. 

Upon  the  same  or  a  like  reason  the  king  has  also  the  prerogative  of  con- 
ferring privileges  upon  private  persons.  Such  as  granting  place  of  pre- 
cedence to  any  of  his  subjects  as  shall  seem  good  to  his  royal  wisdom,  or 
such  as  converting  aliens,  or  persons  born  out  of  the  king's  dominions, 
into  denizens.  Such  also  is  the  prerogative  of  erecting  corporations  [no 
longer  used]. 

V.  Another  light  in  which  the  laws  of  England  consider  the  king  with 
regard  to  domestic  concerns  is  as  the  arbiter  of  commerce.  [273]  By 
commerce  I  at  present  mean  domestic  commerce  only. 

With  us  in  England  the  king's  prerogative,  so  far  as  it  relates  to  mere 
domestic  commerce,  will  fall  principally  under  the  following  ar- 
ticles: [274] 

First,  the  establishment  of  public  marts,  or  places  of  buying  and  sell- 
ing, such  as  markets  and  fairs,  with  the  tolls  thereupto  belonging.  These 
can  only  be  set  up  by  virtue  of  the  king's  grant  or  by  long  and  immemorial 
usage  and  prescription,  which  presupposes  such  a  grant. 

Secondly,  the  regulation  of  weights  and  measures.^ 


5.  In   England  this   power  is   exer-      States  it  belongs  to  Congress.    Const, 
cised  by  parliament.     In  the  United      U.  S.,  art.  1,  §  8.  '^ 


64  Of  the  King's  Prerogative.  [Book  I. 

Thirdly,  as  money  is  the  medium  of  commerce,  it  is  the  king*s  preroga- 
tlve,  as  the  arbiter  of  domestic  commerce,  to  give  it  authority  or  make 
It  current^  [276] 

The  coining  of  money  is  in  all  states  the  act  of  the  soyereign  power, 

that  its  value  may  be  known  on  inspection.  [277]  And  with  respect  to 
coinage  in  general,  there  are  three  things  to  be  considered  therein:  the 
materials,  the  impression,  and  the  denomination. 

With  regard  to  the  materials,  Sir  Edward  Coke  lays  it  down  that  the 
money  of  England  must  either  be  of  gold  or  silyer;  and  none  other  was 
ever  issued  by  the  royal  authority  till  1672,  when  copper  farthings  and 
halfpence  were  coined  by  King  Charles  the  Second,  and  ordered  by 
proclamation  to  be  current  in  all  payments  under  the  value  of  sixpence, 
and  not  otherwise. 

As  to  the  impression,  the  stamping  thereof  is  the  unquestionable  pre- 
rogative of  the  crown. 

The  denomination,  or  the  value  for  which  the  coin  is  to  pass  current, 
is  likewise  in  the  breast  of  the  king,  and  if  any  unusual  pieces  are 
coined,  that  value  must  be  ascertained  by  proclamation.  [278]  In  order 
to  fix  the  value,  the  weight  and  the  fineness  of  the  metal  are  to  be  taken 
into  consideration  together.  When  a  given  weight  of  gold  or  silver  is  of  a 
given  fineness,  it  is  then  of  the  true  standard,  and  called  esterling  or  sterl- 
ing metal.  And  of  this  sterling  or  esterling  metal  all  the  coin  of  the  king- 
dom must  be  made,  by  the  statute  25  Edw.  III.  c.  13.  So  that  the  king's 
prerogative  seemeth  not  to  extend  to  the  debasing  or  enhancing  the  value 
of  the  coin,  below  or  above  the  sterling  value,  though  Sir  Matthew  Hale 
appears  to  be  of  another  opinion. 

The  king  may  also,  by  his  proclamation,  legitimate  foreign  coin,  and 
make  it  current  here,  declaring  at  what  value  it  shall  be  taken  in  pay- 
ments. But  this,  I  apprehend,  ought  to  be  by  comparison  with  the  stand- 
ard of  our  own  coin;  otherwise  the  consent  of  parliament  will  be  neces- 
sary. The  king  may  also  at  any  time  decry,  or  cry  down,  any  coin  of 
the  kingdom,  and  make  it  no  longer  current. 

VI.  The  king  is,  lastly,  considered  by  the  laws  of  England  as  the  head 
and  supreme  governor  of  the  national  church." 

In  virtue  of  this  authority  the  king  convenes,  prorogues,  restrains, 
regulates,  and  dissolves  all  ecclesiastical  synods  or  convocations.   [279] 

From  this  prerogative  also,  of  being  the  head  of  the  church,  arises  the 
king's  right  of  nomination  to  vacant  bishoprics  and  certain  other  ecclesi- 
astical preferments. 

As  head  of  the  church,  the  king  is  likewise  the  dernier  ressort  in  all 
ecclesiastical  causes,  an  appeal  lying  ultimately  to  him  in  chancery  [to 
the  judicial  committee  of  the  privy  council]  from  the  sentence  of  every 
ecclesiastical  judge. 

6.  See  U.  S.  Const.,  art.  1,  §  8.  7.  See  U.  S.  Const.  Amend.,  art.  1. 


Chap.  VIII.]  Of  the  King's  Revenue.  65 

CHAPTER  VIII. 

OF  THE  king's  KEVENUE. 

[As  to  the  subjects  of  the  custody  of  bishop's  temporalities  upon  the 
vacancy  of  the  bishopric  [282],  corodies  [283],  tithes  extra-parochial, 
first-fruits  and  tenths  [284],  profits  of  crown  lands  [286],  purreyance 
and  pre-emption  [287],  wine  licenses  [288],  profits  from  the  kind's  forests 
and  profits  from  the  king's  ordinary  courts  of  justice  *  [289],  royal  fish 
[290],  deoda^ds  (abolished  by  statute  Sept.  1,  1846)  [300],  the  student 
is  referred  to  the  original  text  and  to  1  Broom  &  Had.  Com.  *377  et  s<^q.] 

[As  to  wrecks,  which  by  the  ancient  cpmmon  law  were  where  any  ship 
was  lost  at  sea  and  the  goods  or  cargo  were  thrown  upon  land,  and 
which  were  anciently  a  branch  of  the  king's  maritime  revenue,  it  was 
held  that]  not  only  if  any  live  thing  escape,  but  if  proof  can  be  made 
of  the  property  of  any  of  the  goods  or  lading  which  come  to  shore,  they 
shall  not  be  forfeited  as  wreck.  [292]  The  statute  [of  Westminster  the 
first]  further  ordains,  that  the  sheriff  of  the  county  shall  be  bound  to 
keep  the  goods  a  year  and  a  day,  that  if  any  man  can  prove  a  property 
In  them,  either  in  his  own  right  or  by  right  of  representation,  they  shall 
be  restored  to  him  without  delay;  but,  if  no  such  property  be  proved 
within  that  time,  they  then  shall  be  the  king's.  If  the  goods  are  of  a 
perishable  nature,  the  sheriff  may  sell  them,  and  the  money  shall  be 
liable  In  their  stead. 

In  order  to  constitute  a  legal  wreck  the  goods  must  come  to  land.  If 
they  continue  at  sea,  the  law  distinguishes  them  by  the  barbarous  and 
uncouth  appellations  of  jetsam,  flotsam,  and  Ugan.  Jetsam  is  where  goods 
are  cast  into  the  sea,  and  there  sink  and  remain  under  water;  flotsam  is 
where  they  continue  swimming  on  the  surface  of  the  waves;  ligan  is 
where  they  are  sunk  in  the  sea,  but  tied  to  a  cork  or  buoy,  in  order  to 
be  found  again.  These  are  also  the  king's,  if  no  owner  appears  to  claim 
them;  but  if  any  owner  appears,  he  is  entitled  to  recover  the  possession. 
For,  even  if  they  be  cast  overboard  without  any  mark  or  buoy,  in  order 
to  lighten  the  ship,  the  owner  is  not  by  this  act  of  necessity  construed 
to  have  renounced  his  property;  much  less  can  things  ligan  be  supposed 
to  be  abandoned,  since  the  owner  has  done  all  in  his  power  to  assert 
and  retain  his  property.  These  three  are  therefore  accounted  so  far  a 
distinct  thing  from  the  former,  that  by  the  king's  grant  to  a  man  of 
wrecks,  things  jetsam,  flotsam,  and  ligan  will  not  pass.  [293] 

By  the  statute  27  Edw.  III.  c.  13,  if  any  ship  be  lost  on  the  shore,  and 
the  goods  come  to  land  (which  cannot,  says  the  statute,  be  called  wreck), 
they  shall  be  presently  delivered  to  the  merchants,  paying  only  a  rea- 

8.  Costs  of  suit  are  assessed  against 
the  losing  party  at  law  with  us,  but 
only  where  authorized  by  statute. 


66  Of  the  King's  Revenue.  [Book  I. 

sonable  reward  to  those  that  saved  and  preserved  them,  which  is  en- 
titled salTage.  And  by  the  common  law,  if  any  persons  (other  than  the 
sheriff)  take  any  goods  so  cast  on  shore,  which  are  not  legal  wreck,  the 
owners  might  have  a  commission  to  inquire  and  find  them  out,  and  com- 
pel them  to  make  restitution.^^ 

XII.  A  twelfth  branch  of  the  royal  revenue,  the  ri^ht  to  mlnes.^*  has 
its  original  from  the  king's  prerogative  of  coinage,  in  order  to  supply 
him  with  materials;  and  therefore  those  mines  which  are  properly  royal, 
and  to  which  the  king  is  entitled  when  found,  are  only  those  of  silver 
and  gold.  [294]  By  the  old  common  law,  if  gold  or  silver  be  found  in 
mines  of  base  metal,  according  to  the  opinion  of  some  the  whole  was  a 
royal  mine,  and  belonged  to  the  king;  though  others  held  that  it  only 
did  so  if  the  quantity  of  gold  or  silver  was  of  greater  value  than  the 
quantity  of  base  metal.  But  now  by  the  statutes  1  W.  and  M.  st.  1.  c. 
30,  and  5  W.  and  M.  c.  6,  this  difference  is  made  immaterial,  it  being 
enacted  that  no  mines  of  copper,  tin,  iron,  or  lead  shall  be  looked  upon 
as  royal  mines,  notwithstanding  gold  or  silver  may  be  extracted  from 
them  in  any  quantities;  but  that  the  king,  or  persons  claiming  royal 
mines  under  his  authority,  may  have  the  ore  (other  than  tin-ore  in  the 
counties  of  Devon  and  Cornwall),  paying  for  the  same  a  price  stated  in 
the  act.  [295] 

XIII.  To  the  same  original  may  in  part  be  referred  the  revenue  of 
treasure-trove,  called  in  Latin  thesaurus  inventus,  which  is  where  any 
money  or  coin,  gold,  silver,  plate,  or  bullion,  is  found  hidden  in  the  earth, 
or  other  private  place,  the  owner  thereof  being  unknown,  in  which  case 
the  treasure  belongs  to  the  king;  but  if  he  that  hid  it  be  known,  or  after- 
wards found  out,  the  owner,  and  not  the  king,  is  entitled  to  it.  Also  if 
it  be  found  in  the  sea,  or  upon  the  earth,  it  doth  not  belong  to  the  king, 
but  the  finder,  if  no  owner  appears.  So  that  it  seems  it  is  the  hiding,  and 
not  the  abandoning  of  it,  that  gives  the  king  a  property.^ 

XIV.  Waifs,  bona  waviata,  are  goods  stolen  and  waived  or  thrown  away 
by  the  thief  in  his  flight  for  fear  of  being  apprehended.  [296]  These  are 
given  to  the  king  by  the  law  as  a  punishment  upon  the  owner  for  not 
himself  pursuing  the  felon  and  taking  away  his  goods  from  him.2  And 
therefore,  if  the  party  robbed  do  his  diligence  immediately  to  follow  and 

8a.  For  the  English   statute  upon  to  such  regulation  as  may  be  made  by 

this  subject,  see  I  Broom  &  Had.  Com.,  statute.      See    2   Kent   Com.,    357;    2 

*364  et  seq.     See,  also,  4  U.  S.  Stats.  Schoul.  Pars.  Prop.,  9.     See,  also,  the 

at  Large,  115.  leading  case  of  Armory  v.  Delamire, 

9.  See  Plowd,  336;  Stoakes  v.  Bar-  1  Strange,  504;  1  Smith  Lead  Cases, 

rett,   5   Cal.   36;   Moore  v,   Sliaw,   17  *470  and  notes;  Haslem  v.  Lockwood, 

Gal.  199.  37  Conn.  500. 

1.  Completely    abandoned    or    dere-  2.  Not     the     rule     in     the    United 

lict  property  may  be  appropriated  by  States.     The  larceny  does  not  change 

those  first  taking  it,  subject,  however,  the  title. 


Chap.  VIII.]  Of  the  King's  Revenue.         "  67 

apprehend  the  thief  (which  is  called  making  fresh  suit),  or  do  convict 
him  afterwards  or  procure  evidence  to  convict  him,  he  shall  have  his 
goods  again.  [297]  Waived  goods  do  also  not  belong  to  the  king  till 
seized  by  somebody  for  his  use;  for  if  the  party  robbed  can  seize  them 
first,  though  at  the  distance  of  twenty  years,  the  king  shall  never  haye 
them.  If  the  goods  are  hid  by  the  thief,  or  left  anywhere  by  him  so  that 
he  had  them  not  about  him  when  he  fled,  and  therefore  did  not  throw  them 
away  in  his  flight,  these  also  are  not  bona  tcaviata,  but  the  owner  may 
have  them  again  when  he  pleases.  The  goods  of  a  foreign  merchant, 
though  stolen  and  thrown  away  in  flight,  shall  never  be  waifs:  the  rea- 
son whereof  may  be  not  only  for  the  encouragement  of  trade,  but  also 
because  there  is  no  wilful  default  in  the  foreign  merchant's  not  pursuing 
the  thief,  he  being  generally  a  stranger  to  our  laws,  our  usages,  and  our 
language. 

XV.  Estrays  are  such  valuable  animals  as  are  found  wandering  in  any 
manor  or  lordship,  and  no  man  knoweth  the  owner  of  them,  in  which 
case  the  law  gives  them  to  the  king  as  the  general  owner  and  lord  para- 
mount of  the  soil  in  recompense  for  the  damage  which  they  may  have 
done  therein,  and  they  now  most  commonly  belong  to  the  lord  of  the 
manor  by  special  grant  from  the  crown.^  Any  beasts  may  be  estrays  that 
are  by  nature  tame  or  reclaimable,  and  in  which  there  is  a  valuable 
property,  as  sheep,  oxen,  swine,  and  horses,  which  we  in  general  call 
cattle.  [298]  For  animals  upon  which  the  law  sets  no  value,  as  a  dog  or 
cat,  and  animals  ferae  naturae,  as  a  bear  or  wolf,  cannot  be  considered 
as  estrays.  So  swans  may  be  estrays,  but  not  any  other  fowl;  whence 
they  are  said  to  be  royal  fowl.  He  that  takes  an  estray  is  bound  so  long 
as  he  keeps  it  to  find  it  in  provisions  and  preserve  it  from  damage,  and 
may  not  use  it  by  way  of  labor,  but  is  liable  to  an  action  for  so  doing. 
Yet  he  may  milk  a  cow  or  the  like,  for  that  tends  to  the  preservation  and 
is  for  the  benefit  of  the  animal. 

[299]  XVI.  Forfeitures  of  lands  and  goods  for  offences;  iona  confiscata, 
as  they  are  called  by  the  civilians,  because  they  belong  to  the  fiscus  or 
imperial  treasury;  or,  as  our  lawyers  term  them,  forisfacta;  that  is.  such 
whereof  the  property  is  gone  away  or  departed  from  the  owner.  The 
true  reason  and  only  substantial  ground  of  any  forfeiture  for  crimes 
consist  in  this;  that  all  property  is  derived  from  society,  being  one  of 
those  civil  rights  which  are  conferred  upon  individuals,  in  exchange  for 
that  degree  of  natural  freedom  which  every  man  must  sacrifice  when 
he  enters  into  social  communities.  If  therefore  a  member  of  any  na- 
tional community  violates  the  fundamental  contract  of  his  association, 
by  transgressing  the  municipal  law,  he  forfeits  his  right  to  such  privi- 
leges as  he  claims  by  that  contract;  and  the  state  may  very  justly  re- 
sume that  portion  of  property,  or  any  part  of  it,  which  the  laws  have 
before  assigned  him.     Hence,  in  every  offence  of  an  atrocious  kind,  the 

3.  A  matter  of  statutory  regulation  in  the  United  States. 


68  Op  the  Kino's  REVEisruE.  [Book  I. 

laws  of  England  have  exacted  a  total  confiscation  of  the  moveables  or 
personal  estate;  and  in  many  cases  a  perpetual,  in  others  only  a  tem- 
porary, loss  of  the  offender's  immoveables  or  landed  property;  and  have 
vested  them  both  in  the  king,  who  is  the  person  supposed  to  be  offended, 
being  the  one  visible  magistrate  in  whom  the  majesty  of  the  public  re- 
sides. The  particulars  of  these  forfeitures  will  be  more  properly  re- 
cited when  we  treat  of  crimes  and  misdemeanors.* 

XVII.  Another  branch  of  the  king's  ordinary  revenue  arises  from 
escheats  of  lands,  which  happen  upon  the  defect  of  heirs  to  succeed  to 
the  inheritance,  whereupon  they  in  general  revert  to  and  vest  in  the 
king,  who  is  esteemed  in  the  eye  of  the  law  the  original  proprietor  of 
all  the  lands  in  the  kingdom.^  [302] 

XVIII.  The  eighteenth  and  last  branch  of  the  king's  ordinary  revenue 
consists  in  the  custody  of  idiots,  from  whence  we  shall  be  naturally  led 
to  consider  also  the  custody  of  lunatics. 

An  idiot  or  natural  fool  Is  one  that  bath  had  no  understanding  from  his 
nativity,  and  therefore  is  by  law  presumed  never  likely  to  attain  any.  For 
which  reason  the  custody  of  him  and  of  his  lands  was  formerly  vested  in 
the  lord  of  the  fee,  but,  by  reason  of  the  manifold  abuses  of  this  power 
by  subjects,  it  was  at  last  provided  by  common  consent  that  it  should 
be  given  to  the  king,  as  the  general  conservator  of  his  people,  in  order 
to  prevent  the  idiot  from  wasting  his  estate  and  reducing  himself  and  his 
heirs  to  poverty  and  distress.  [303]  This  fiscal  prerogative  of  the  king 
is  declared  in  parliament  by  statute  17  Edw.  II.  c.  9,  which  directs  (in 
affirmance  of  the  common  law)  that  the  king  shall  have  ward  of  the 
lands  of  natural  fools,  taking  the  profits  without  waste  or  destruction, 
and  shair  find  them  necessaries;  and  after  the  death  of  such  idiots  he 
shall  render  the  estate  to  the  heirs,  in  order  to  prevent  such  idiots  from 
aliening  their  lands  and  their  heirs  from  being  disinherited.^  By  the  old 
common  law  there  is  a  writ  de  idiota  inquirendo  to  inquire  whether  a 
man  be  an  idiot  or  not,  which  must  be  tried  by  a  jury  of  twelve  men. 

A  man  is  not  an  idiot  if  he  hath  any  glimmering  of  reason,  so  that  he 
can  tell  his  parents,  his  age,  or  the  like  common  matters.  [304]  But  a 
man  who  is  born  deaf,  dumb,  and  blind,  is  looked  upon  by  the  law  as 
in  the  same  state  with  an  idiot.     [Not  now  the  law.] 

A  lunatic  or  non  compos  mentis  is  one  who  hath  had  understanding, 
but  by  disease,  grief,  or  other  accident,  hath  lost  the  use  of  his  reason. 
A  lunatic  is  indeed  properly  one  that  hath  lucid  intervals,  sometimes  en- 

4.  See  Book  4.  cised   by   courts   of   chancery.     It   is, 

5.  See  esclieats  under  the  head  real  however,  usually  regulated  by  statute, 
property,  post.  See   generally   Adams   Equity,   eh.   6 

6.  In  the  United  States,  where  not  and  notes;  Eyre  v.  Countess  of 
otlierwise  prescribed  by  statute,  this  Shaftsbury,  2  Wliite  &  Tudor's  Lead, 
jurisdiction  togetiier  with  that  over  Cas.  Eq.,  p.  i,  *693  and  notes;  Dodge 
infants  and  lunatics,  is  usually  exer-  v.  Cole,  97  III.  338, 


Chap.  VIII.]  Of  the  King's  Revenue.  69 

joying  his  senses  and  sometimes  not.  But  under  the  general  name  of 
non  compos  mentis  i  (which  Sir  Edward  Coke  says  is  the  most  legal  name) 
are  comprised  not  only  lunatics,  but  persons  under  frenzies,  or  who  lose 
their  intellects  by  disease,  those  that  grow  deaf,  dumb,  and  blind  [obso- 
lete], not  being  born  so;  or  such,  in  short,  as  are  judged  by  the  court 
of  chancery  incapable  of  conducting  their  own  affairs.  To  these,  also, 
as  well  as  idiots,  the  king  is  guardian,  but  to  a  very  different  purpose. 
For  the  law  always  imagines  that  these  accidental  misfortunes  may  be 
removed,  and  therefore  only  constitutes  the  crown  a  trustee  for  the  un- 
fortunate persons,  to  protect  their  property  and  to  account  to  them  for 
all  profits  received  if  they  recover,  or,  after  their  decease,  to  their  repre- 
sentatives.s 

On  the  first  attack  of  lunacy  or  other  occasional  insanity,  while  there 
may  be  hope  of  a  speedy  restitution  of  reason,  it  is  usual  to  confine  the 
unhappy  objects  in  private  custody  under  the  direction  of  their  nearest 
friends  and  relations.  [305]  But  when  the  disorder  is  grown  permanent, 
and  the  circumstances  of  the  party  will  bear  such  additional  expense,  it 
is  proper  to  apply  to  the  royal  authority  to  warrant  a  lasting  confine- 
ment. 

The  method  of  proving  a  person  non  compos  is  very  similar  to  that 
of  proving  him  an  idiot.  The  Lord  Chancellor,  to  whom  by  special  au- 
thority from  the  king  the  custody  of  idiots  and  lunatics  is  intrusted, 
upon  petition  or  information  grants  a  commission  in  nature  of  the  writ 
de  idiota  inquirendo^  to  inquire  into  the  party's  state  of  mind,  and  if  he 
be  found  non  compos  he  usually  commits  the  care  of  his  person,  with  a 
suitable  allowance  for  his  maintenance,  to  some  friend,  which  is  then 
called  his  committee.  However,  to  prevent  sinister  practices,  the  next 
heir  is  seldom  permitted  to  be  this  committee  of  the  person  [personal 
fitness  for  the  office  now  determines  the  appointment  of  the  committee, 
both  of  the  person  and  estate],  because  it  is  his  interest  that  the  party 
should  die.  But  it  hath  been  said  there  lies  not  the  same  objection 
against  his  next  of  kin,  provided  he  be  not  his  heir,  for  it  is  his  interest 
to  preserve  the  lunatic's  life,  in  order  to  increase  the  personal  estate 
by  savings  which  he  or  his  family  may  hereafter  be  entitled  to  enjoy. 
The  heir  is  generally  made  the  manager  or  committee  of  the  estate,  it 
being  clearly  his  interest  by  good  management  to  keep  it  in  condition, 
accountable,  however,  to  the  court  of  chancery,  and  to  the  non  compos 
himself  if  he  recovers,  or  otherwise  to  his  administrators.^  With  us, 
when  a  man  on  an  inquest  of  idiocy  hath  been  returned  an  unthrift  and 
not  an  idiot,  no  farther  proceedings  have  been  had.  [306] 

7.  Not  of  sound  mind.  local  statutes.    The  disabilities  of  in- 

8.  See  note  3,  supra.  fancy,  coverture,   insanity,   etc.,  will 

9.  Of  inquiry  concerning  an  idiot.  be   considered   imder   the   subjects  of 
1.  Regulated    by    statute     in     the  contracts,  criminal  law,  etc. 

United   States.     Always   consult   the 


70  Of  the  King's  Revenue.  [Book  I. 

Extraordinary  grants  are  usnally  called  by  the  synonymous  names  of 
aids,  subsidies,  and  supplies,  and  are  granted  by  the  Commons  of  Great 
Britain  in  parliament  assembled,  who,  when  they  have  voted  a  supply 
to  his  Majesty  and  settled  the  quantum  of  that  supply,  usually  resolve 
themselves  into  what  is  called  a  Committee  of  Ways  and  Means,  to  con- 
sider the  ways  and  means  of  raising  the  supply  so  voted.  [307] 

[As  to  the  land  tax  [308],  the  malt  tax  [313],  income  tax,  customs 
[313],  excise  duty  [318],  the  revenue  from  the  post  office  [321],  stamp 
duties  [323],  the  duty  upon  houses  and  windows  [324],  the  duty  upon 
offices  and  pensions  [326],  licenses,  &c.,  the  student,  besides  the  refer- 
ences to  the  author,  is  referred  to  1  Broom  &  Had.  Com.  ♦368  et  seq., 
and  to  the  English  Statutes  at  Large.] 


Chap.  IX.]         Of  Subordinate  Magistkates.  71 


CHAPTEE  IX. 

OF  SUBORDINATE  MAGISTKATES. 

The  magistrates  and  officers,  whose  rights  and  duties  it 
will  be  proper  in  this  chapter  to  consider,  are  such  as  are 
generally  in  use  and  have  a  jurisdiction  and  authority  dis- 
persedly  throughout  the  kingdom,  which  are  principally 
sheriffs,  coroners,  justices  of  the  peace,  constables,  survey- 
ors of  highways,  and  overseers  of  the  poor.    [339] 

I.  The  sheriff  is  an  officer  of  very  great  antiquity  in  this 
kingdom,  his  name  being  derived  from  two  Saxon  words, 
signifying  the  reeve,  bailiff,  or  officer  of  the  shire.  He  is 
called  in  Latin  vice-comes,  as  being  the  deputy  of  the  earl 
or  comes,  to  whom  the  custody  of  the  shire  is  said  to  have 
been  committed  at  the  first  division  of  this  kingdom  into 
counties.  But  the  earls  in  process  of  time,  by  reason  of 
their  high  employments  and  attendance  on  the  king's  per- 
son, not  being  able  to  transact  the  business  of  the  county, 
were  delivered  of  that  burden,  reserving  to  themselves  the 
honor,  but  the  labor  was  laid  on  the  sheriff.  So  that  now 
the  sheriff  does  all  the  king's  business  in  the  county,  and, 
though  he  be  still  called  vice-comes,  yet  he  is  entirely  inde- 
pendent of,  and  not  subject  to,  the  earl,  the  king  by  his 
letters-patent  committing  custodiam  comitatus^  to  the 
sheriff,  and  him  alone. 

The  power  and  duty  of  the  sheriff  are  either  as  a  judge, 
as  the  keeper  of  the  king's  peace,  as  a  ministerial  officer 
of  the  superior  courts  of  justice,  or  as  the  king's  bailiff. 

In  his  judicial  capacity  he  is  to  hear  and  determine  all  causes  of  forty 
shillings  value  and  under  in  his  county  court,  and  he  has  also  a  judicial 
power  in  divers  other  civil  cases.  He  is  likewise  to  decide  the  elections 
of  knights  of  the  shire  (subject  to  the  control  of  the  House  of  Com- 
mons), of  coroners,  and  of  verderors;  to  judge  of  the  qualification  of 
voters,  and  to  return  such  a^  he  shall  determine  to  he  duly  elected.^ 

1.  The  custody  of  the  county.  much    changed    by    statute.      See    1 

2.  His    judicial    powers    have    been      Broom  &  Had.  Com.,  409.    He  is  usu- 


72  Of  Subordinate  Magistrates.  [Book  L 

As  the  keeper  of  the  king's  peace,  both  by  common  law 
and  special  commission,  he  is  the  first  man  in  the  county. 
He  may  apprehend  and  commit  to  prison  all  persons  who 
break  the  peace  or  attempt  to  break  it,  and  may  bind  any 
one  in  a  recognizance  to  keep  the  king's  peace.  He  may 
and  is  bound  ex  officio  to  pursue  and  take  all  traitors,  mur- 
derers, felons,  and  other  misdoers,  and  commit  them  to  jail 
for  safe  custody.  He  is  also  to  defend  his  county  against 
any  of  the  king's  enemies  when  they  come  into  the  land; 
and  for  this  purpose,  as  well  as  for  keeping  the  peace  and 
pursuing  felons,  he  may  command  all  the  people  of  his 
county  to  attend  him,  which  is  called  the  posse  comitatus, 
or  power  of  the  county;^  and  this  summons  every  person 
above  fifteen  years  old  and  under  the  degree  of  a  peer  is 
bound  to  attend  upon  warning,  under  pain  of  fine  and  im- 
prisonment. [344]  But  though  the  sheriff  is  thus  the  prin- 
cipal conservator  of  the  peace  in  his  county,  yet  by  the 
express  directions  of  the  Great  Charter  he,  together  with 
the  constable,  coroner,  and  certain  other  officers  of  the  king, 
are  forbidden  to  hold  any  pleas  of  the  crown,  or,  in  other 
words,  to  try  any  criminal  offence. 

In  his  ministerial  capacity  the  sheriff  is  bound  to  execute 
all  process  issuing  from  the  king's  courts  of  justice.  In  the 
commencement  of  civil  causes  he  is  to  serve  the  writ,  to 
arrest,  and  to  take  bail;  when  the  cause  comes  to  trial  he 
must  summon  and  return  the  jury;  when  it  is  determined 
he  must  see  the  judgment  of  the  court  carried  into  execu- 
tion. In  criminal  matters  he  also  arrests  and  imprisons,  he 
returns  the  jury,  he  ha§  the  custody  of  the  delinquent,  and 
he  executes  the  sentence  of  the  court,  though  it  extend  to 
death  itself.* 

ally   given   no   judicial   power   in   the  States  marshal  is  the  executive  officer 

United  States,  except  in  some  states  of  the  court.     This   is,   however,   an 

the    execution    of    writs    of    inquiry  appointive  office. 

upon  defaults,  i.  e.,  the  assessment  of  4.  The  duties  of  the  sheriff  are  in 

damages,  etc.  substance    the    same    in    the    United 

3.  He   has   the    same    authority   in  States  except  so  far  as  changed  by 

the  several  states.    The  office  is  elec-  statute, 
tive.    In  the  federal  courts  the  United 


Chap.  IX.]         Of  Subordinate  Maoisteates.  73 

As  the  king's  bailiff,  it  is  his  business  to  preserve  tlie  rigtits  of  the 
king  within  his  bailiwick,  for  so  his  county  is  frequently  called  in  the 
writs.  He  must  seize  to  the  king's  use  all  lands  devolved  to  the  crown 
by  attainder  or  escheat,  must  levy  all  fines  and  forfeitures,  must  seize 
and  keep  all  waifs,  wrecks,  estrays,  and  the  like,  unless  they  be  granted 
to  some  subject,  and  must  also  collect  the  king's  rents  within  the  baili- 
wick, if  commanded  by  process  from  the  exchequer. 

To  execute  these  various  offices  the  sheriff  has  under  him 
many  inferior  officers,  —  an  under-sheriff,  bailiffs,  and 
gaolers.^    [345] 

The  under-sheriff  usually  performs  all  the  duties  of  the 
office,  a  very  few  only  excepted,  where  the  personal  presence 
of  the  high-sheriff  is  necessary. 

Bailiffs,  or  sheriff's  officers,  are  either  bailiffs  of  hundreds 
or  special  bailiffs.  Bailiffs  of  hundreds  are  officers  ap- 
pointed over  those  respective  districts  by  the  sheriffs  to 
collect  fines  therein,  to  summon  juries,  to  attend  the  judges 
and  justices  at  the  assizes  and  quarter  sessions,  and  also 
to  execute  writs  and  process  in  the  several  hundreds. 

Gaolers  are  also  the  servants  of  the  sheriff,  and  he  must 
he  responsible  for  their  conduct.  [346]  Their  business  is 
to  keep  safely  all  such  persons  as  are  committed  to  them 
by  lawful  warrant,  and  if  they  suffer  any  such  escape  the 
sheriff  shall  answer  it  to  the  king  if  it  be  a  criminal  matter, 
or,  in  a  civil  case,  to  the  party  injured. 

11.  The  Coroner's  is  also  a  very  ancient  office  at  the 
common  law.  He  is  called  coroner  {coronator),  because  he 
halth  principally  to  do  with  pleas  of  the  crown  or  such 
wherein  the  king  is  more  immediately  concerned.  And  in 
this  light  the  Lord  Chief  Justice  of  the  King's  Bench  is  the 
principal  coroner  in  the  kingdom,  and  may  if  he  pleases 
exercise  the  jurisdiction  of  a  coroner  in  any  part  of  the 
realm.  But  there  are  also  particular  coroners  for  every 
county  of  England,  usually  four,  but  sometimes  six  and 
sometimes  fewer.  [347]  This  office  is  of  equal  antiquity 
with  the  sheriff,  and  was  ordained  together  with  him  to 
keep  the  peace  when  the  earls  gave  up  the  wardship  of  the 
county. 

5.  Consult  the  local  statutes. 


74  Of  Subordinate  Magistrates.  [Book  I, 

He  is  still  chosen  [for  life]  by  the  freeholders  [of  the 
county  or  district.    1  Broom  &  Had.  Com.  415]." 

The  oflBce  and  power  of  a  coroner  are  also,  like  those  of 
the  sheriff,  either  judicial  or  ministerial,  but  principally 
judicial.  [348]  This  is  in  great  measure  ascertained  by 
statute  4  Edw.  I.  de  officio  coronatoris,^  and  consists,  firsts 
in  inquiring  when  any  person  is  slain,  or  dies  suddenly  or 
in  prison,  concerning  the  manner  of  his  death.  And  this 
must  be  "super  visum  corporis/'^  for  if  the  body  be  not 
found  the  coroner  cannot  sit.  He  must  also  sit  at  the  very 
place  where  the  death  happened,^  and  his  inquiry  is  made 
by  a  jury  from  four,  five,  or  six  of  the  neighboring  towns 
over  whom  he  is  to  preside.  If  any  be  found  guilty  by  this 
inquest  of  murder  or  other  homicide  he  is  to  commit  them 
to  prison  for  further  trial,  and  is  also  to  inquire  concerning 
their  lands,  goods,  and  chattels,  which  are  forfeited  thereby; 
but,  whether  it  be  homicide  or  not,  he  must  inquire  whether 
any  deodand  [obsolete]  has  accrued  to  the  king,  or  the  lord 
of  the  franchise,  by  this  death,  and  must  certify  the  whole 
of  this  inquisition  (under  his  own  seal  and  the  seals  of  his 
jurors),  together  with  the  evidence  thereon,  to  the  court  of 
King's  Bench,  or  the  next  assizes.    [349] 

Another  branch  of  his  office  is  to  inquire  concerning  shipwrecks,  and 
certify  whether  wreck  or  not,  and  who  is  in  possession  of  the  goods. 
Concerning  treasure-troTe,  he  is  also  to  inquire  who  were  the  finders, 
and  where  it  is,  and  whether  any  one  be  suspected  of  having  found  and 
concealed  a  treasure. 

The  ministerial  office  of  the  coroner  is  only  as  the  sheriff's 
substitute.  For  when  just  exception  can  be  taken  to  the 
sheriff  for  suspicion  of  partiality  (as  that  he  is  interested 
in  the  suit,  or  of  kindred  to  either  plaintiff  or  defendant)^ 

6.  It  is  an  elective  oflBce  in  this  ence.  His  duties  in  this  country  are 
country.  very  similar  to  those  in  England.   See 

7.  Ck)ncerning  the  office  of  coroner,  the    local    statutes.      As   the   United 

8.  Upon  a  view  of  the  body.  States  has  no  common  law  criminal 

9.  It  is  sufficient  if  the  coroner  and  jurisdiction  it  has  no  office  corre- 
jury  together  view  the  body  and  the  spending  to  that  of  coroner. 

latter   are  'there   sworn   in   his  pres- 


Chap.  IX.]         Of  Subordinate  Magisteates.  75 

the  process  must  then  be  awarded  to  the  coroner  instead  of 
the  sheriff  for  execution  of  the  king's  writs. ^ 

III.  The  next  species  of  subordinate  magistrates  whom 
I  am  to  consider  are  justices  of  the  peace,  the  principal  of 
whom  is  the  custos  rotulorum,  or  keeper  of  the  records  of 
the  county. 

The  common  law  hath  ever  had  a  special  care  and  regard  for  the  con- 
servation of  the  peace.  And  therefore,  before  the  present  constitution 
of  justices  was  invented,  there  were  peculiar  officers  appointed  by  the 
common  law  for  the  maintenance  of  the  public  peace.  Of  these,  some 
had  and  still  have  this  power  annexed  to  other  offices  which  they  hold; 
others  had  it  merely  by  itself,  and  were  thence  named  custodies,  or  con- 
servatores  pacisM  Those  that  were  bo,  virtute  officii,^  still  continue,  but  the 
latter  sort  are  superseded  by  the  modern  justices. 

The  king's  majesty  is,  by  his  office  and  dignity  royal,  the  principal 
conservator  of  the  peace  within  all  his  dominions,  and  may  give  au- 
thority to  any  other  to  see  the  peace  kept  and  to  punish  such  as  break 
it,  hence  it  is  usually  called  the  king's  peace.  [350]  The  Lord  Chancel- 
lor, or  Keeper,  the  Lord  Treasurer,  the  Lord  High  Steward  of  England, 
the  Lord  Mareschal,  the  Lord  High  Constable  of  England  (when  any 
such  officers  are  in  being),  and  all  the  justices  of  the  court  of  King's 
Bench  (by  lirtue  of  their  offices)  and  the  Master  of  the  Rolls  (by  pre- 
scription) are  general  conservators  of  the  peace  throughout  the  whole 
kingdom,  and  may  commit  all  breakers  of  it  or  bind  them  in  recogni- 
zances to  keep  it.  The  other  judges  are  only  so  in  their  own  courts. 
The  coroner  is  also  a  conservator  of  the  peace  within  his  own  county, 
as  is  also  the  sheriff,  and  both  of  them  may  take  a  recognizance  or  se- 
curity for  the  peace.  Constables,  tithing-men,  and  the  like,  are  also 
conservators  of  the  peace  within  their  own  jurisdictions,  and  may  ap- 
prehend all  breakers  of  the  peace  and  commit  them  till  they  find  sure- 
ties for  their  keeping  it. 

Justices  [of  the  peace]  are  appointed  by  the  king's  special 
commission  under  the  Great  Seal,^  the  form  of  which  was 
settled  by  all  the  judges  A.  D.  1590.  This  appoints  them 
all,  jointly  and  severally,  to  keep  the  peace,  and  any  two  or 
more  of  them  to  inquire  of  and  determine  felonies  and  other 
misdemeanors;  in  which  number"  some  particular  justices, 
or  one  of  them,  are  directed  to  be  always  included,  and  no 

1.  So  also  in  this  country.  2.  By  virtue  of  his  office. 

la.  Conservators  of  the  peace.  3.  Usually  elected  in  this  country. 


76  Of  Suboediitate  Magistrates.  [Book  I. 

business  to  be  done  without  their  presence;  the  words  of 
the  commission  running  thus:  ^^  quorum  aliquem  vestrum, 
A.  B.  C.  D.,  &€.,  unum  esse  volumus/'*  whence  the  persons 
so  named  are  usually  called  justices  of  the  quorum. 


And  formerly  it  was  customary  to  appoint  only  a  select  number  of 
justices  eminent  for  their  skill  and  discretion  to  be  of  the  quorum;  but 
now  the  practice  is  to  advance  all  of  them  to  that  dignity,  naming  them 
all  over  again  in  the  quorum  clause ;5  and  no  exception  is  now  allowable 
for  not  expressing  in  the  form  of  warrants,  &c.,  that  the  justice  who 
issued  them  is  of  the  quorum.  [352]  When  any  justice  intends  to  act 
under  this  commission  he  siies  out  a  writ  of  dedimus  potestatem^  from  the 
clerk  of  the  crown  in  chancery,  empowering  certain  persons  therein 
named  to  administer  the  usual  oaths  to  him,  which  done,  he  is  at  liberty 
to  act. 

As  the  office  of  these  jastices  [of  the  peace]  is  conferred  by  the  king, 
80  it  subsists  only  daring  his  pleasure,  and  is  determinable,  1.  By  the 
demise  of  the  crown;  that  is,  in  six  months  after.  2.  By  express  writ 
under  the  Great  Seal,  discharging  any  particular  person  from  being  any 
longer  justice.  3.  By  superseding  the  commission  by  writ  of  supersedeas, 
which  suspends  the  power  of  all  the  justices,  but  does  not  totally  destroy 
it,  seeijig  it  may  be  revived  again  by  another  writ  called  a  procedendo. 
4.  By  a  new  commission,  which  virtually  though  silently  discharges  all 
the  former  justices  that  are  not  included  therein,  for  two  commissions 
cannot  subsist  at  once.  5.  By  accession  of  the  office  of  sheriff  or  coroner 
[which  disqualifies  during  the  continuance  of  the  new  office,  but  no 
longer]. 


The  power,  office,  and  duty  of  a  justice  of  the  peace  de- 
pend on  his  commission  and  on  the  several  statutes  which 
have  created  objects  of  his  jurisdiction.  [354]  His  com- 
mission, first,  empowers  him  singly  to  conserve  the  peace; 
and  thereby  gives  him  all  the  power  of  the  ancient  con- 
servators at  the  common  law,  in  suppressing  riots  and 
affrays,  in  taking  securities  for  the  peace,  and  in  apprehend- 
ing and  committing  felons  and  other  inferior  criminals.  It 
also  empowers  any  two  or  more  to  hear  and  determine  all 
felonies  and  other  offences;  which  is  the  ground  of  their 

4.  Of  whom  we  will  that  some  one  5.  1  Broom.  &  Had.  Com.,  421. 

of  you,  A.  B.  C.  D.,  etc.,  be  one.  6.  We  have  given  authority. 


Chap.  IX.]  Of  Subordinate  Magistrates.  77 

jurisdiction  at  sessions,  of  which  more  will  be  said  in  its 
proper  place."^ 
IV.  Fourthly,  then,  of  the  constable.    [355] 

The  word  constable  is  frequently  said  to  be  derived  from  the  Saxon,  and 
to  signify  the  support  of  the  king.  But  as  we  borrowed  the  name  as 
well  as  the  office  of  constable  from  the  French,  I  am  rather  inclined  to 
deduce  it,  with  Sir  Henry  Spelman  and  Dr.  Cowel,  from  that  language, 
wherein  it  is  plainly  derived  from  the  Latin  comes  stahuli,  an  officer  well 
known  in  the  empire;  so  called  because,  like  the  Great  Constable  of 
France,  as  well  as  the  Lord  High  Constable  of  England,  he  was  to 
regulate  all  matters  of  chivalry,  tilts,  tournaments,  and  feats  of  arms 
which  were  performed  on  horseback.  This  great  office  of  Lord  High 
Constable  hath  been  disused  in  England,  except  only  upon  great  and 
solemn  occasions,  as  the  king's  coronation  and  the  like,  ever  since  the 
attainder  of  Stafford,  Daike  of  Buckingham,  under  King  Henry  VIII.; 
as  in  France  it  was  suppressed  about  a  century  after  by  an  edict  of 
Louis  xni.:  but  from  his  office,  says  Lambard,  this  lower  constableship 
was  first  drawn  and  fetched^  and  is,  as  it  were,  a  very  linger  of  that 
hand.  For  the  statute  of  Winchester,  which  first  appoints  them,  directs 
that,  for  the  better  keeping  of  the  peace,  two  constables  in  every  hun- 
dred and  franchise  shall  inspect  all  matters  relating  to  arms  and  armor. 

Constables  are  of  two  sorts,  high  constables  and  petty  constables. 
The  former  were  first  ordained  by  the  statute  of  Winchester,  are  ap- 
pointed at  the  court  leets  of  the  franchise  or  hundred  over  which  they 
preside,  or,  in  default  of  that,  by  the  justices  at  their  quarter  sessions, 
and  are  removable  by  the  same  authority  that  appoints  them.  [356] 
The  petty  constables  are  inferior  officers  in  every  town  and  parish,  sub- 
ordinate to  the  high  constable  of  the  hundred,  first  instituted  about  the 
reign  of  Edw.  IIL 

The  general  duty  of  all  constables,  both  high  and  petty, 
is  to  keep  the  king's  peace  in  their  several  districts;  and  to 

7.  In   the   United   States  the   stat-  burn's  Manual  of  Criminal  Law    (3d 

utes  usually   confer  upon  justices  of  Ed.),  eh.  3;   Clark's  Crim.  Procedure, 

the  peace  jurisdiction  to  try  and  de-  82. 

termine   actions  at  common   law,   in-  In  England  this  office  is  said  to  be 

volving  small  amounts,  to  try,  with  an  office  of  honor  without  profits;  in 

the  assistance  of  a  jury,   petty  mis-  this  country  it  is  too  often  an  office 

demeanors,   and   to   hold   preliminary  of  profit  without  honor.    It  is  a  court 

examinations  of  persons  charged  with  of    limited   jurisdiction   and   jurisdic- 

grave  offences.     They   are   also   con-  tion  must  be  shown,  or  its  acts  are 

servators  of  the  peace,  as  stated  in  void.     See  post,  courts  of  record  and 

the  text.     They  have  no  jurisdiction  not  of  record, 
to  try  felonies.    See  generally  Wash- 


78  Of  Subordinate  Magistrates.  [Book  I. 

that  purpose  they  are  armed  with  very  large  powers,  of 
arresting  and  imprisoning,  of  breaking  open  houses,  and 
the  like.* 

V.  Saryeyors  of  the  highways.'  [357]  Every  parish  is  bound  of  com- 
mon riglit  to  keep  the  high  roads  that  go  through  it  in  good  and  suffi- 
cient repair,  unless  by  reason  of  the  tenure  of  lands,  or  otherwise,  this 
care  is  consigned  to  some  particular  private  person.  From  this  burthen 
no  man  was  exempt  by  our  ancient  laws,  whatever  other  immunities 
he  might  enjoy,  this  being  part  of  the  trinoda  necessitas,  to  which  every 
man's  estate  was  subject,  viz.,  expeditio  contra  hostem,  arcium  constructio, 
et  pontium  reparaiio.  For  though  the  reparation  of  bridges  only  is  ex- 
pressed, yet  that  of  roads  also  must  be  understood.  And  indeed  now, 
for  the  most  part,  the  care  of  the  roads  only  seems  to  be  left  to  parishes, 
that  of  bridges  being  in  great  measure  devolved  upon  the  county  at 
large,  by  statute  22  Hen.  VIII.  c.  5.  If  the  parish  neglected  these  re- 
pairs, they  might  formerly,  as  they  may  still  be,  indicted  for  such  their 
neglect,  but  it  was  not  then  incumbent  on  any  particular  officer  to  call 
the  parish  together,  and  set  them  upon  this  work;  for  which  reason,  by 
the  statute  2  and  3  Ph.  and  M.  c.  8,  surveyors  of  the  highways  were  or- 
dered to  be  chosen  in  every  parish.  [358] 

Their  office  and  duty  consists  in  putting  in  execution  a  variety  of  laws 
for  the  repairs  of  the  public  highways;  that  is,  of  ways  leading  from 
one  town  to  another  [to  which  statutes  the  student  is  referred  for  fur- 
ther information.     Regulated  by  statute  in  the  United  States]. 

VI.  Overseers  of  the  poor.i 

The  poor  of  England,  till  the  time  of  Henry  VIII.,  subsisted  entirely 
upon  private  benevolence  and  the  charity  of  well-disposed  Chris- 
tians. [359] 

[But  by  the  statute  of  43  Eliz.  c.  2,  overseers  of  the  poor  were  to  be 
appointed  in  every  parish,  whose  office  and  duty  were  principally  these:] 
First,  to  raise  competent  sums  for  the  necessary  relief  of  the  poor,  im- 
potent, old,  blind,  and  such  other,  being  poor  and  not  able  to  work;  and 
secondly,  to  provide  work  for  such  as  are  able,  and  cannot  otherwise 
get  employment.  [360]  For  these  joint  purposes  they  are  empowered  to 
make  and  levy  rates  upon  the  several  inhabitants  of  the  parish,  by  the 
same  act  of  parliament;  which  has  been  further  explained  and  enforced 
by   several   subsequent  statutes.    [361]     The  two   great  objects  of   this 

8.  In  this  country  they  are  also  the  9.  See  the  local  statutes  upon  this 

ministerial   officers   of   the   courts   of  subject. 

justices  of  the  peace  and  in  that  ca-  '1.  Consult  the  local  statutes  upon 

paeity  serve  all  process  issuing  from  this  subject,  as  there  is  no  uniform 

justice  courts.    Their  duties  are  pre-  rule  in  this  country, 
scribed  by  statute. 


Chap.  IX.]         Of  Subordinate  Magistrates.  79 

statute  seem  to  have  been,  1,  To  relieve  the  impotent  poor,  and  them 
only,  2,  To  find  employment  for  such  as  are  able  to  work;  and  this 
principally  by  providing  stocks  of  raw  materials  to  be  worked  up  at 
their  separate  homes,  instead  of  accumulating  all  the  poor  in  one  com- 
mon workhouse. 

This  appears  to  have  been  the  plan  of  the  statute  of  Queen  Elizabeth; 
in  which  the  only  defect  was  confining  the  management  of  the  poor  to 
small  parochial  districts,  which  are  frequently  incapable  of  furnishing 
proper  work  or  providing  an  able  director.  However,  the  laborious  poor 
were  then  at  liberty  to  seek  employment  wherever  it  was  to  be  had, 
none  being  obliged  to  reside  in  the  places  of  their  settlement  but  such 
as  were  unable  or  unwilling  to  work;  and  those  places  of  settlement  be- 
ing only  such  where  they  were  born,  or  had  made  their  abode,  originally 
for  three  years,  and  afterwards  (in  the  case  of  vagabonds)  for  one  year 
only.   [362] 

After  the  Restoration  a  very  different  plan  was  adopted,  which  has 
rendered  the  employment  of  the  poor  more  difficult,  by  authorizing  the 
subdivisions  of  parishes;  has  greatly  increased  their  number,  by  con- 
fining them  all  to  their  respective  districts;  has  given  birth  to  the  in- 
tricacy of  our  poor-laws,  by  multiplying  and  rendering  more  easy  the 
methods  of  gaining  settlements;  and,  in  consequence,  has  created  an 
infinity  of  expensive  law-suits  between  contending  neighborhoods,  con- 
cerning those  settlements  and  removals.  By  the  statute  13  and  14  Car, 
II,  c.  12,  a  legal  settlement  was  declared  to  be  gained  by  birth,  or  by 
inhabitancy,  apprenticeship,  or  service,  for  forty  days;  within  which  period 
all  intruders  were  made  removable  from  any  parish  by  two  jus-tices  of 
the  peace,  unless  they  settled  in  a  tenement  of  the  annual  value  of  lOl. 
The  frauds  naturally  consequent  upon  this  provision,  which  gave  a  set- 
tlement by  so  short  a  residence,  produced  the  statute  1  Jac.  II.  c.  17, 
which  directed  notice  in  writing  to  be  delivered  to  the  parish  officers, 
before' a  settlement  could  be  gained  by  such  residence.  Subsequent  pro- 
visions allowed  other  circumstances  of  notoriety  to  be  equivalent  to 
such  notice  given;  and  those  circumstances  have  from  time  to  time  been 
altered,  enlarged,  or  restrained,  whenever  the  experience  of  new  in- 
conveniences, arising  daily  from  new  regulations,  suggested  the  neces- 
sity of  a  remedy.  And  the  doctrine  of  certificates  was  invented,  by  way 
of  counterpoise,  to  restrain  a  man  and  his  family  from  acquiring  a  new 
settlement  by  any  length  of  residence  whatever,  unless  in  two  particular 
excepted  cases,  which  makes  parishes  very  cautious  of  giving  such  cer- 
tificates, and  of  course  confines  the  poor  at  home,  where  frequently  no 
adequate  employment  can  be  had. 

The  law  of  settlement  may  be  therefore  now  reduced  to  the  following 
general  heads;  or,  a  settlement  in  a  parish  may  be  acquired,  1,  By  birth; 
for  wherever  a  child  is  first  known  to  be,  that  is  always  prima  facie 
the  place  of  settlement  until  some  other  can  be  shown.  [363]  This  is 
also  generally  the  place  of  settlement  of  a  bastard  child,  for  a  bastard. 


80  Of  Subordinate  Magistrates.  [Book  L 

having  in  the  eye  of  the  law  no  father  cannot  be  referred  to  his  settle- 
ment, as  other  children  may.  But  in  legitimate  children,  though  the 
place  of  birth  be  prima  facie  the  settlement,  yet  it  Is  not  conclusively  so; 
for  there  are,  2,  Settlements  by  parentage,  being  the  settlement  of  one's 
fathei*  or  mother;  all  legitimate  children  being  really  settled  in  the 
parish  where  their  parents  are  settled  until  they  get  a  new  settlement 
for  themselves.  A  new  settlement  may  be  acquired  several  ways;  as,  3, 
By  marriagr;  for  a  woman  marrying  a  man  that  is  settled  in  another 
parish  changes  her  own  settlement,  the  law  not  permitting  the  separa- 
tion of  husband  and  wife.  But  if  the  man  has  no  settlement,  hers  is 
suspended  during  his  life  if  he  remains  in  England  and  is  able  to  main- 
tain her;  but  in  his  absence,  or  after  his  death,  or  during,  perhaps,  his 
inability,  she  may  be  removed  to  her  old  settlement.  The  other  methods 
of  acquiring  settlements  in  any  parish  are  all  reducible  to  this  one,  of 
forty  days'  residence  therein;  but  this  forty  days'  residence  (which  is  con- 
strued to  be  lodging  .^r  lying  there)  must  not  be  by  fraud,  or  stealth, 
or  in  any  clandestine  manner,  but  made  notorious  by  one  or  other  of  the 
following  concomitant  circumstances.  The  next  method,  therefore,  of 
gaining  a  settlement  is,  4,  By  forty  days'  residence,  and  notice.  For  if  a 
stranger  comes  into  a  parish  and  delivers  notice  in  writing  of  his  place 
of  abode,  and  number  of  his  family,  to  one  of  the  overseers  (which  must 
be  read  in  the  church  and  registered),  and  resides  there  unmolested  for 
forty  days  after  such  notice,  he  is  legally  settled  thereby.  For  the  law 
presumes  that  such  a  one  at  the  time  of  notice  is  not  likely  to  become 
chargeable,  else  he  would  not  venture  to  give  it,  or  that  in  such  case 
the  parish  would  take  care  to  remove  him.  But  there  are  also  other 
circumstances  equivalent  to  such  notice;  therefore,  5,  Renting  for  a  year 
a  tenement  of  the  yearly  value  of  lOl-,  and  residing  forty  days  in  the 
parish,  gains  a  settlement  without  notice,  upon  the  principle  of  having 
substance  enough  to  gain  credit  for  such  a  house.  [364]  6,  Being  charged 
to  and  paying  the  public  taxes  and  levies  of  the  parish,  excepting'  those 
for  scavengers,  highways,  and  the  duties  on  houses  and  windows;  and, 
7,  Executing,  when  legally  appointed,  any  public  parochial  office  for  a 
whole  year  in  the  parish,  as  church  warden,  &c.,  are  both  of  them  equiva- 
lent to  notice,  and  gain  a  settlement  if  coupled  with  a  residence  of  forty 
days.  8,  Being  hired  for  a  year,  when  unmarried  and  childless,  and 
/serving  a  year  in  the  same  service;  'and  9,  Being  bound  an  apprentice 
give  the  servant  and  apprentice  a  settlement,  without  notice,  in  that 
place  wherein  they  serve  the  last  forty  days.  This  is  meant  to  encour- 
age application  to  trades,  and  going  out  to  reputable  services.  10, 
Lastly,  the  having  an  estate  of  one's  own,  and  residing  thereon  forty 
days,  however  small  the  value  may  be,  in  case  it  be  acquired  by  act  of 
law,  or  of  a  third  person,  as  by  descent,  gift,  devise,  &c.,  is  a  sufficient 
settlement;  but  if  a  man  acquire  it  by  his  own  act,  as  by  purchase  (In  its 
popular  sense,  in  consideration  of  money  paid),  then  unless  the  con- 


CuAP.  IX.]         Of  Subordinate  Magistrates.  81 

Bideration  advanced,  bona  fide,  be  30^,  it  is  no  settlement  for  any  longer 
tinae  than  the  person  shall  inhabit  thereon.  He  is  in  no  case  removable 
from  his  own  property;  but  he  shall  not,  by  any  trifling  or  fraudulent 
purchase  of  his  own,  acquire  a  permanent  and  lasting  settlement. 

All  persons  not  so  settled  may  be  removed  to  their  own  parishes,  on 
complaint  of  the  overseers,  by  two  justices  of  the  peace,  if  they  shall 
adjudge  them  likely  to  become  chargeable  to  the  parish  into  which  they 
have  intruded;  unless  they  are  in  a  way  of  getting  a  legal  settlement, 
as  by  having  hired  a  house  of  lOl.  per  annum,  or  living  in  an  annual 
service,  for  then  they  are  not  removable.  [365]  And  in  all  other  cases. 
If  the  parish  to  which  they  belong  will  grant  them  a  certificatej  ac- 
knowledging them  to  be  their  parishioners,  they  cannot  be  removed 
merely  because  likely  to  become  chargeable,  but  only  when  they  become 
a<^tually  chargeable.  But  such  certificated  person  can  gain  no  settle- 
ment by  any  of  the  means  above  mentioned,  unless  by  renting  a  tene- 
ment of  10^.  per  annum,  or  by  serving  an  annual  office  in  the  parish,  be- 
ing legally  placed  therein;  neither  can  an  apprentice  or  servant  to  such 
certificated  person  gain  a  settlement  by  such  their  service.^ 

2.  See  1  Broom  &  Had.  Com.  *437; 
and  the  statutes  of  the  several  state* 
upon  this  subject. 


82  Of  the  People.  .      [Book  I. 

CHAPTER  X. 

OP  THE  PEOPLE,   WHETHER  ALIENS,   DENIZENS,  OR  NATIVES. 

The  first  and  most  obvious  division  of  the  people  is  into 
aliens  and  natural-bom  subjects.   [366] 

Natural-born  subjects  are  such  as  are  born  within  the 
dominions  of  the  crown  of  England,  —  that  is,  within  the 
ligeance,  or,  as  it  is  generally  called,  the  allegiance  of  the 
king,  —  and  aliens  such  as  are  born  out  of  it.^  Allegiance 
is  the  tie,  or  ligamen,  which  binds  the  subject  to  the  king  in 
return  for  that  protection  which  the  king  affords  the 
subject. 

Under  the  feodal  system  every  owner  of  lands  held  them  in  subjection 
to  some  superior  or  lord,  from  whom  or  whose  ancestors  the  tenant  or 
vassal  had  received  them,  and  there  was  a  mutual  trust  or  confidence 
subsisting  between  the  lord  and  vassal  that  the  lord  should  protect  the 
vassal  in  the  enjoyment  of  the  territory  he  had  granted  him,  and,  on  the 
other  hand,  that  the  vassal  should  be  faithful  to  the  lord  and"  defend  him 
against  all  his  enemies.  [367]  This  obligation  on  the  part  of  the  vassal 
was  called  fidelitas  or  fealty,  and  an  oath  of  fealty  was  required,  by  the 
feodal  law,  to  be  taken  by  all  tenants  to  their  landlord,  which  is  couched 
in  almost  the  same  terms  as  our  ancient  oath  of  allegiance,  except  that 
in  the  usual  oath  of  fealty  there  was  frequently  a  saving  or  exception 
of  the  faith  due, to  a  superior  lord  by  name,  under  whom  the  landlord 
himself  was  perhaps  only  a  tenant  or  vassal.  But  when  the  acknowledg- 
ment was  made  to  the  absolute  superior  himself,  who  was  vassal  to  no 
man,  it  was  no  longer  called  the  oath  of  fealty,  but  the  oath  of  allegiance, 
and  therein  the  tenant  swore  to  bear  faith  to  his  sovereign  lord,  in 
opposition  to  all  men,  without  any  saving  or  exception:  'oontra  omnea 
homines  fidelitatem  fecit."  Land  held  by  this  exalted  species  of  fealty 
was  called  feudum  Hgium,  or  liege  fee,  the  vassals  homines  ligii,  or  liege 
men,  and  the  sovereign  their  dominus  ligius,  or  liege  lord.  And  when 
sovereign  princes  did  homage  to  each  other  for  lands  held  under  their 
respective  sovereignties,  a  distinction  was  always  made  between  simple 
homage,  w^ich  was  only  an  acknowledgment  of  tenure,  and  Uege  homage, 

1.  See    Black's    Const.    Law,    257;  abroad  during  such  absence  will  not 

Wilson's  Int.  Law,  126-135.     A  tern-  make  the  child   an  alien,   even  as   it 

porary  absence   of   the   parents   from  seems,  though  the  mother  be  an  alien. 

the  country  and  the  birth  of  a  child  Ludlam  v.  Ludlam,  26  N.  Y.  357. 


Chap.  X.]  Of  the  People.  83 

which  included  the  fealty  before  mentioned  and  the  services  consequent 
upon  it.  Thus  when  our  Edward  III.  in  1329  did  homage  to  Philip  VI. 
of  France  for  his  ducal  dominions  on  that  continent,  it  was  warmly  dis- 
puted of  what  species  the  homage  was  to  be,  whether  liege  or  simple 
homage.  But  with  us  in  England,  it  becoming  a  settled  principle  of 
tenure  that  all  lands  in  the  kingdom  are  holden  of  the  king  as  their 
sovereign  and  lord  paramount,  no  oath  but  that  of  fealty  could  ever 
be  taken  to  inferior  lords,  and  the  oath  of  allegiance  was  necessarily 
confined  to  the  person  of  the  king  alone.  By  an  easy  analogy  the  term 
of  allegiance  was  soon  brought  to  signify  all  other  engagements  which 
are  due  from  subjects  to  their  prince  as  well  as  those  duties  which  were 
simply  and  merely  territorial.  And  the  oath  of  allegiance,  as  adminis- 
tered for  upwards  of  six  hundred  years,  contained  a  promise  "  to  be  true 
and  faithful  to  the  king  and  his  heirs,  and  truth  and  faith  to  bear  of 
life  and  limb  and  terrene  honor,  and  not  to  know  or  hear  of  any  ill  or 
damage  intended  him  without  defending  him  therefrom."  [368]  But  at 
the  Revolution  the  terms  of  this  oath  being  thought  perhaps  to  favor 
too  much  the  notion  of  non-resistance,  the  present  form  was  introduced 
by  the  convention  parliament,  which  is  more  general  and  indeterminata 
than  the  former,  the  subject  only  promising  "  that  he  will  be  faithful 
and  bear  true  allegiance  to  the  king,"  without  mentioning  "  his  heirs  " 
or  specifying  in  the  least  wherein  that  allegiance  consists.  The  oath 
of  supremacy  is  principally  calculated  as  a  renunciation  of  the  pope's 
pretended  authority,  and  the  oath  of  abjuration,  introduced  in  the  reign 
of  King  William,  very  amply  supplies  the  loose  and  general  texture  of 
the  oath  of  allegiance,  it  recognizing  the  right  of  his  Majesty  derived 
under  the  act  of  settlement,  engaging  to  support  him  to  the  utmost  of 
the  juror's  power,  promising  to  disclose  all  traitorous  conspiracies 
against  him,  and  expressly  renouncing  any  claim  of  the  descendants  of 
the  late  Pretender,  in  as  clear  and  explicit  terms  as  the  English  lan- 
guage can  furnish.  This  oath  must  be  taken  by  all  persons  in  any 
office,  trust,  or  employment,  and  may  be  tendered  by  two  justices  of  the 
peace  to  any  person  whom  they  shall  suspect  of  disaffection.  And  the 
oath  of  allegiance  may  be  tendered  to  all  persons  above  the  age  of 
twelve  years,  whether  natives,  denizens,  or  aliens,  either  in  the  court- 
leet  of  the  manor  or  in  the  sheriff's  tourn,  which  is  the  court-leet  of  the 
county.2 

But  besides  these  express  engagements  the  law  also  holds 
that  there  is  an  implied,  original,  and  virtual  allegiance 
owing  from  every  subject  to  his  sovereign  antecedently  to 

2.  For  the  present  state  of  the  Eng- 
lish law  upon  this  subject,  see  I 
Broom  &  Had.  Com.  444. 


84  Op  the  People.  [Book  L 

any  express  promise,  and  although  the  subject  never  swore 
any  faith  or  allegiance  in  form.  [369]  For  as  the  king  by 
the  very  descent  of  the  crown  is  fully  invested  with  all  the 
rights  and  bound  to  all  the  duties  of  sovereignty  before  his 
coronation,  so  the  subject  is  bound  to  his  prince  by  an  in- 
trinsic allegiance  before  the  superinduction  of  those  out- 
ward bonds  of  oath,  homage,  and  fealty  which  were  only 
instituted  to  remind  the  subject  of  this  his  previous  duty 
and  for  the  better  securing  its  performance.  The  formal 
profession,  therefore,  or  oath  of  subjection,  is  nothing  more 
than  a  declaration  in  words  of  what  was  before  implied  in 
law. 

Allegiance  both  express  and  implied  is,  however,  distin- 
guished by  the  law  into  two  sorts  or  species,  the  one  natural, 
the  other  local;  the  former  being  also  perpetual,  the  latter 
temporary.  Natural  allegiance  is  such  as  is  due  from  all 
men  born  within  the  king's  dominions  immediately  upon 
their  birth.  For  immediately  upon  their  birth  they  are 
under  the  king's  protection,  at  a  time,  too,  when  (during 
{heir  infancy)  they  are  incapable  of  protecting  themselves. 
Natural  allegiance  is  therefore  a  debt  of  gratitude  which 
cannot  be  forfeited,  cancelled,  or  altered,  or  altered  by  any 
change  of  time,  place,  or  circumstance,  nor  by  anything  but 
the  united  concurrence  of  the  legislature.^ 

3.  '■  In  1870  (33  Vict.,  c.  14)  a  new  all  the  obligations  ot  a  subject.  \v.(,a 
and  very  important  statute  gave  to  this  qualification, —  that  within  tlie 
the  alien  all  desirable  facilities  of  be-  limits  of  the  state  to  which  he  for- 
coming  a  British  subject,  and  to  the  merly  belonged  he  shall  not  be  deemed 
British  subject  the  power  of  renounc-  to  be  a  British  subject  unless  he  has 
ing  his  nationality.  By  this  statute  ceased  to  be  a  subject  of  that  state 
an  alien,  after  five  years'  residence  in  pursuance  of  its  laws  or  of  a  treaty 
in  the  United  Kingdom,  or  service  of  to  that  effect.  It  is  provided  also 
the  crown,  who  intends,  if  natural-  that  aliens  naturalized  according  to 
ized,  to  continue  his  residence  or  ser-  the  statute  of  1844  (7  &  8  Vict.,  c. 
vice,  may  apply  to  one  of  the  princi-  66)  may  partake  of  the  advantages 
pal  secretaries  of  state  for  a  certifi-  of  this  new  mode  of  naturalization, 
catc  of  naturalization.  When  thus  On  the  other  hand,  any  British  sub- 
naturalized  he  becomes  entitled  to  all  ject  naturalized  in  any  foreign  state 
the  political  rights  and  powers  of  a  is  deemed  to  have  ceased  to  be  a  sub- 
British  subject,  and  is  placed  under  ject  and  is  regarded  as  an  alien,  and 


Chap.  X.]  Of  the  People.  85 

Local  allegiance  is  sucli  as  is  due  from  an  alien  or  strange- 
born,  for  so  long  time  as  he  continues  within  the  king's 
dominion  and  protection,  and  it  ceases  the  instant  such 
stranger  transfers  himself  from  this  kingdom  to  another. 
[370]  Natural  allegiance  is  therefore  perpetual,  and  local, 
temporary  only.  The  allegiance  of  an  alien  is  confined  in 
point  of  time  to  the  duration  of  his  residence  [within  this 
realm],  and  in  point  of  locality  to  the  dominions  of  the 
British  Empire.  From  which  considerations  Sir  Matthew 
Hale  deduces  this  consequence,  that  though  there  be  an 
usuper  of  the  crown,  yet  it  is  treason  for  any  subject,  while 
the  usurper  is  in  full  possession  of  the  sovereignty,  to  prac- 
tise anything  against  his  crown  and  dignity;  wherefore, 
although  the  true  prince  regain  the  sovereignty^  yet  such 
attempts  against  the  usurper  (unless  in  defence  or  aid  of 
the  rightful  king)  have  been  afterwards  punished  with 
death,  because  of  the  breach  of  that  temporary  allegiance 
which  was  due  to  him  as  king  de  facto  [in  fact].    [371] 

This  oath  of  allegiance,  or  rather  the  allegiance  itself,  is  held  to  be 
applicable  not  only  to  the  political  capacity  of  the  king  or  regal  office, 
but  to  his  natural  person  and  blood  royal. 

An  alien  born  may  purchase  lands  or  other  estates,  but 
not  for  his  own  use,  for  the  king  is  thereupon  entitled  to 
them.''    [372] 

a    British   subject   who  has  thus  be-  other  aliens,  and  the  same  alternation 

come  an  alien  can  be  readmitted  to  of  nationality  may  be   renewed  over 

British  nationality  on  the  same  terms  and  over."     Woolsey's  Int.  Law   (5th 

with  other  aliens,  but  with  the  quali-  ed),  §  70,  p.  100.     See,  also,  Wilson's 

fieation    before   noticed.      ...     In  Int.   Law,    135;    Black's   Const.   Law, 

August  of  the  same  year  and  in  con-  257;    15  U.  S.  Stat,  at  Large,  223. 

formity  with  this  statute,  a  conven-  4.  An    alien    cannot,    however,    at 

tion    relative    to    naturalization    was  common   law   take   real   property   by 

concluded  between  Great  Britain  and  descent.   This  rule  and  the  rule  stated 

the  United  States.     Subjects  or  citi-  in  the  text  have  been  greatly  changed 

zens  of  either  state  may  be  natural-  by   statutes   both   here   and   in   Eng- 

ized    in    the    other    according    to    its  land.     See   the   local   state   statutes; 

laws,   and   after   this   they   cease   to  also  33  Vict.,  c.  14.     See,  also,  U.  S. 

retain   their   old   national  status    [or  Const.,    art.    14,    amend,    sec.    1,    by 

condition] ;    but    may    regain    it    like  which   it   is   provided   that   "All  per* 


86  Of  the  Pi;oi»LE.  [Book  T. 

Yet  an  alien  may  acquire  a  property  in  goods,  money  and 
other  personal  estate,  or  may  hire  a  house  for  his  habitation^ 
for  personal  estate  is  of  a  transitory  and  movable  nature; 
and  besides,  this  indulgence  to  strangers  is  necessary  for 
the  advancement  of  trade.  Aliens  also  may  trade  as  freely 
as  other  people.  Also  an  alien  may  bring  an  action  con- 
cerning personal  property,  and  may  make  a  will  and  dis- 
pose of  his  personal  estate.  When  I  mention  these  rights 
of  an  alien,  I  must  be  understood  of  alien  friends  only,  or 
such  whose  countries  are  in  peace  with  ours;  for  alien 
enemies  have  no  rights,  no  privileges,  unless  by  the  king's 
special  favor,  during  the  time  of  war.    [373] 

When  I  say  that  an  alien  is  one  who  is  born  out  of  the 
king's  daminions  or  allegiance,  this  also  must  be  under- 
stood with  some  restrictions.  The  children  of  the  king's 
ambassadors  born  abroad  were  always  held  to  be  natural 
subjects;  for  as  the  father,  though  in  a  foreign  country, 
owes  not  even  a  local  allegiance  to  the  prince  to  whom  he 
is  sent,  so,  with  regard  to  the  son  also,  he  was  held  (by  a 
kind  of  postliminiumY  to  be  born  under  the  king  of  Eng- 
land 's  allegiance,  represented  by  his  father  the  ambassador. 
To  encourage  also  foreign  commerce,  it  was  enacted  by 
statute  25  Edw.  III.  st.  2,  that  all  children  born  abroad, 
provided  both  their  parents  were  at  the  time  of  his  birth  in 
allegiance  to  the  king,  and  the  mother  had  passed  the  seas 
by  her  husband's  consent,  might  inherit  as  if  born  in  Eng- 
land, and  accordingly  it  hath  been  so  adjudged  in  behalf 
of  merchants.  But  by  several  more  modern  statutes  these 
restrictions  are  still  farther  taken  off,  so  that  all  children, 
born  out  of  the  king's  ligeance,  whose  fathers  (or  grand- 
fathers by  the  father's  side)  were  natural-born  subjects, 

Bons  born  or  naturalized  in  the  United  any  state  deprive  any  person  of  life. 
States  and  subject  to  the  jurisdiction  liberty  or  property,  without  due  proc- 
thereof  are  citizens  of  the  United  ess  of  law,  nor  deny  to  any  person 
States  and  of  the  state  wherein  they  within  its  jurisdiction  the  equal  pro- 
reside.  No  state  shall  make  or  en-  tection  of  the  laws."  See,  also,  U.  S. 
force    any    law    which    shall    abridge  Const.  Amd.  15. 

the  privileges  or  immunities  of  citi-  5.  A  return  to  one's  old  condition 

ens  of  the  United  States;  nor  shall  and  former  privileges. 


^ 


Chap.  X.]  Of  the  People.  87 

are  now  deemed  to  be  natural-born  subjects  themselves  to 
all  intents  and  purposes;  unless  their  said  ancestors  were 
attained,  or  banished  beyond  the  sea  for  high  treason,  or 
were  at  the  birth  of  such  children  in  the  service  of  a  prince 
at  enmity  with  Great  Britain.  Yet  tlje  grandchildren  of 
such  ancestors  shall  not  be  privileged  in  respect  of  the 
alien's  duty,  except  they  be  Protestants,  and  actually  reside 
within  the  realm;  nor  shall  be  enabled  to  claim  any  estate 
or  interest,  unless  the  claim  be  made  within  five  years  after 
the  same  shall  accrue.'' 

The  children  of  aliens  born  here  in  England  are,  generally 
speaking,  natural-born  subjects,  and  entitled  to  all  the  privi- 
leges of  such.'^    [374] 

A  denizen  is  an  alien  born,  but  who  has  obtained,  ex  donatione  regis,^ 
letters-patent  to  make  him  an  English  subject, — a  high  and  incom- 
municable branch  of  the  royal  prerogative.  A  denizen  is  in  a  kind  of 
middle  state,  between  an  alien  and  natural-born  subject,  and  partakes  of 
both  of  them.  He  may  take  lands  by  purchase  or  devise,  which  an  alien 
may  not,  but  cannot  take  by  inheritance;  for  his  parent,  through  whom 
he  must  claim,  being  an  alien,  had  no  inheritable  blood,  and  therefore 
could  convey  none  to  the  son.  And,  upon  a  like  defect  of  hereditary 
blood,  the  issue  of  a  denizen,  born  hefore  denization,  cannot  inherit  to 
him,  but  his  issue  born  after  may.  A  denizen  is  not  excused  from  paying 
the  alien's  duty,  and  some  other  mercantile  burthens.  And  no  denizen 
can  be  of  the  privy  council,  or  either  house  of  parliament,  or  have  any 
office  of  trust,  civil  or  military,  or  be  capable  of  any  grant  of  lands,  &c., 
from  the  crown. 

Naturalization  cannot  be  performed  but  by  act  of  parlia- 
ment; for  by  this  an  alien  is  put  in  exactly  the  same  state 
as  if  he  had  been  born  in  the  king's  ligeance;  except  only 

6.  "  The    children    of    persons    who  of  the   author,  see   1  Broom  &  Had. 

now  are  or  have  been  citizens  of  the  Com.,  *450. 

United  States  shall,  though  born  out  7.  Unless,  of  course,  coming  within 

of  the  limits  and  jurisdiction  of  the  some  exception  already  noticed,  such 

United  States,  be  considered  as  citi-  as  the  children  of  an  ambassador, 

zens   thereof."     Rev.    Stat.   U.    S.,    §  8.  By  gift   of  the  king.     We  have 

2172;  Wilson's  Int.  Law,  126-135  and  nothing   corresponding   to    denization 

cases  cited.     As  to  statutory  changes  in  our  country, 
of  the  law  in  England  since  the  time 


88  Of  the  People.  [Book  I. 

that  he  is  incapable,  as  well  as  a  denizen,  of  being  a  member 
of  the  privy  council,  or  parliament,  holding  offices,  grants, 
&c.  No  bill  for  naturalization  can  be  received  in  either 
house  of  parliament  without  such  disabling  clause  in  it;  nor 
without  a  clause  disabling  the  person  from  obtaining  any 
immunity  in  trade  thereby  in  any  foreign  country,  unless 
he  shall  have  resided  in  Britain  for  seven  years  next  after 
the  commencement  of  the  session  in  which  he  is  naturalized. 
Neither  can  any  person  be  naturalized  or  restored  in  blood 
unless  he  hath  received  the  sacrament  of  the  Lord's  Supper 
within  one  month  before  the  bringing  in  of  the  bill,  and 
unless  he  also  takes  the  oath  of  allegiance  and  supremacy 
in  the  presence  of  the  parliament.  But  these  provisions 
have  been  usually  dispensed  with  by  special  acts  of  parlia- 
ment, previous  to  bills  of  naturalization  of  any  foreign 
princes  or  princesses.^ 

9.  Tlie   English   law   of   naturaliza-  p.  66;    Wilson's  Int.  Law,   126.     See 

tion    has    been    considerably    changed  Rev.   Stat.   U.   S.,   §   2165   et  seq.  for 

since   our   author   wrote.     For   these  the  American  law  upon  this  subject, 

changes  see   1   Broom  &  Had.   Com.,  also  Wilson's  Int.  Law,  126. 
*453;  Woolsey's  Int.  Law,  i  70;  ante^, 


Chap.  XI.]  Oy  the  Cleegt.  '^      89 


CHAPTER  XI. 

OF  THE  CLERGY. 

[Inasmuch  as  it  is  provided  by  the  Constitution  of  the 
United  States  that  '*  Congress  shall  make  no  law  respecting 
an  establishment  of  religion,  or  prohibiting  the  free  exer- 
cise thereof  "  (Amend.  Art.  I.),  and  that  **  no  religious  test 
shall  ever  be  required  as  a  qualification  to  any  ofiice  or 
public  trust  under  the  United  States  "  (Const.  Art.  VI.),  — 
which  principles  have  been  generally  adopted  by  the  indi- 
vidual states  in  their  constitutions,  —  the  matters  discussed 
in  this  chapter  are  not  deemed  of  sufficient  practical  value 
to  have  a  place  in  this  abridgment.] 


90  ^  Of  the  Civil  State.  [Book  I. 


CHAPTER  XII. 

OF  THE   CIVIL  STATE. 

The  lay  part  of  bis  Majesty's  subjects,  or  such  of  the  people  as  are 
not  comprehended  under  the  denomination  of  clergy,  may  be  divided  into 
three  distinct  states,  the  civil,  the  military,  and  the  maritime,  r.396] 

That  pare  of  the  nation  which  falls  under  our  first  and  most  compre- 
hensive division,  the  civil  state,  includes  all  orders  of  men,  from  the 
highest  nobleman  to  the  meanest  peasant,  that  are  not  included  under 
either  our  former  division,  of  clergy,  or  under  one  of  the  two  latter, 
the  military  and  maritime  states;  and  it  may  sometimes  include  indi- 
viduals of  the  other  three  orders,  since  a  nobleman,  a  knight,  a  gentle- 
man, or  a  peasant  may  become  either  a  divine,  a  soldier,  or  a  seaman. 

The  civil  state  consists  of  the  nobility  and  the  commonalty.  Of  the 
nobility,  the  peerage  of  Great  Britain,  or  Lords  Temporal,  as  forming, 
together  with  the  bishops,  one  of  the  supreme  branches  of  the  legis- 
lature, I  have  before  sufficiently  spoken.  We  are  here  to  consider  them 
according  to  their  several  degrees,  or  titles  of  honor. 

All  degrees  of  nobility  and  honor  are  derived  from  the  king  as  their 
fountain,  and  he  may  institute  what  new  titles  he  pleases.  Hence  it 
is  that  all  degrees  of  nobility  are  not  of  equal  antiquity.  Those  now  in 
use  are  dukes,  marquises,  earls,  viscounts,  and  barons. 

1.  A  duke  [Latin  dux,  ducis,  a  leader],  though  he  be  with  us,  in  respect 
of  his  title  of  nobility,  inferior  in  point  of  antiquity  to  many  others, 
yet  is  superior  to  all  of  them  in  rank;  his  being  the  first  title  of  dignity 
after  the  royal  family.  [397] 

2.  A  marquis,  marchio,  is  the  next  degree  of  nobility.  His  office  for- 
merly was  (for  dignity  and  duty  wer-e  never  separated  by  our  ancestors) 
to  guard  the  frontiers  and  limits  of  the  kingdom,  which  were  called  the 
marches,  from  the  Teutonic  word  marche,  a  limit. 

3.  An  earl  is  a  title  of  nobility  so  ancient  that  its  original  cannot 
clearly  be  traced  out.  [398]  Thus  much  seems  tolerably  certain:  that 
among  the  Saxons  they  were  called  ealdormen,  quasi  elder  men,  signify- 
ing the  same  as  sentor  or  senator  among  the  Romans,  and  also  schiremev, 
because  they  had  each  of  them  the  civil  government  of  a  several  divi- 
sion or  shire.  On  the  irruption  of  the  Danes  they  changed  the  name  to 
Tories,  which,  according  to  Camden,  signified  the  same  in  their  language. 
In  Latin  they  are  called  comites  (a  title  first  used  in  the  Empire),  from 
being  the  king's  attendants, — "a  societate  nomen  sumpserunt,  reges  enim 
tales  sibi  associant."  i     After  the  Norman  Conquest  they  were  for  some 

1.  They  were  named  from  their  so- 
ciety because  they  were  companiona 
of  tlie  king. 


Chap.  XII.]  Of  the  Civil  State.  91 

time  called  counts  or  countees,  from  the  French;  but  they  did  not  long 
retain  that  name  themselves,  though  their  shires  are  from  thence  called 
counties  to  this  day.  The  names  of  earls  or  comites  is  now  become  a 
mere  title,  they  having  nothing  to  do  with  the  government  of  the  county; 
which,  as  has  been  more  than  once  observed,  is  now  entirely  devolved 
on  the  sheriff,  the  earl's  deputy,  or  vice-comes. 

4.  The  name  of  vice-comes  or  viscount  was  afterwards  made  use  of 
as  an  arbitrary  title  of  honor,  without  any  shadow  of  office  pertaining 
to  it,  by  Henry  VI.,  when,  in  the  eighteenth  year  of  his  reign,  he  created 
John  Beaumont  a  peer,  by  the  name  of  Viscount  Beaumont,  which  was 
the  first  instance  of  the  kind. 

5.  A  baron's  is  the  most  general  and  universal  title  of  nobility;  for 
originally  every  one  of  the  peers  of  superior  rank  had  also  a  barony 
annexed  to  his  other  titles.  [399]  .  .  .  Richard  II.  first  made  it  a 
mere  title  of  honor  by  conferring  it  on  divers  persons  by  his  letters- 
patent. 

The  right  of  peerage  seems  to  liave  been  originally  territorial,  that  is, 
annexed  to  lands,  honors,  castles,  manors,  and  the  like,  the  proprietors 
and  possessors  of  which  were,  in  right  of  those  estates,  allowed  to  be 
peers  of  the  realm,  and  were  summoned  to  parliament  to  do  suit  and 
service  to  their  sovereign,  and  when  the  land  was  alienated  the  dignity 
passed  with  it  as  appendant.  [400]  But  afterwards,  when  alienations 
grew  to  be  frequent,  the  dignity  of  peerage  was  confined  to  the  lineage 
of  the  party  ennobled,  and  instead  of  territorial  became  personal. 

Peers  are  now  created  either  by  writ  or  by  patent,  for  those  who  claim 
by  prescription  must  suppose  either  a  writ  or  patent  made  to  their  an- 
cestors, though  by  length  of  time  it  is  lost.  The  creation  by  writ,  or 
the  king's  letter,  is  a  summons  to  attend  the  House  of  Peers  by  the 
style  and  title  of  that  barony  which  the  king  is  pleased  to  confer;  that 
by  patent  is  a  royal  grant  to  a  subject  of  any  dignity  and  degree  of 
peerage.  The  creation  by  writ  is  the  more  ancient  way,  but  a  man  is 
not  ennobled  thereby  unless  he  actually  take  his  seat  in  the  House  of 
Lords.  The  most  usual  way  is  to  grant  the  dignity  by  patent,  which 
Inures  to  a  man  and  his  heirs  according  to  the  limitations  thereof,  though 
he  never  himself  makes  use  of  it.  Creation  by  writ  has  also  one  ad- 
vantage over  that  by  patent,  for  a  person  created  by  writ  holds  the 
dignity  to  him  and  his  heirs  without  any  words  to  that  purport  in  the 
writ;  but  in  letters-patent  there  mhst  be  words  to  direct  the  inheritance, 
else  the  dignity  inures  only  to  the  grantee  for  life.  [401] 

Let  us  next  take  a  view  of  a  few  of  the  principal  incidents  attending 
the  nobility,  exclusive  of  their  capacity  as  members  of  parliament  and 
as  hereditary  counselors  of  the  crown,  both  of  which  we  have  before 
considered.  And  first  we  must  observe  that  in  criminal  cases  a  noble- 
man shall  be  tried  by  his  peers.  It  is  said  that  this  does  not  extend  to 
bishops,   who,  though   they   are  lords   of  parliament  and  sit  there   by 


92  ^  Of  the  Civil  State.  [Book  I. 

virtue  of  their  baronies,  which  they  hold  jvirc  ecclesiae,  yet  are  not  en- 
nobled in  blood,  and  consequently  not  peers  with  the  nobility.  As  to 
peeresses,  the  statute  20  Hen.  VI.  c.  9  declares  the  law  to  be,  that  peer- 
esses, either  in  their  own  right  or  by  marriage,  shall  be  tried  before  the 
same  judicature  as  other  peers  of  the  realm.  If  a  woman,  noble  in  her 
own  right,  marries  a  commoner,  she  still  remains  noble,  and  shall  be 
tried  by  her  peers;  but  if  she  be  only  noble  by  marriage,  then  by  a  sec- 
ond marriage  with  a  commoner  she  loses  her  dignity,  for  as  by  mar- 
riage it  is  gained,  by  marriage  it  is  also  lost.  Yet  if  a  duchess  dowager 
marries  a  baron  she  continues  a  duchess  still,  for  all  the  nobility  are 
pares,  and  therefore  it  is  no  degradation.  [402]  A  peer  or  peeress,  either 
in  her  own  right  or  by  marriage,  cannot  be  arrested  in  civil  cases,  and 
they  have  also  many  peculiar  priylleges  annexed  to  their  peerage  in  the 
course  of  judicial  proceedings.  A  peer  sitting  in  judgment  gives  not  his 
verdict  upon  oath  like  an  ordinary  juryman,  but  upon  his  honor.  He 
answers  also  to  bills  in  chancery  upon  his  honor  and  not  upon  his 
oath;  but  when  he  is  examined  as  a  witness  either  in  civil  or  criminal 
cases  he  must  be  sworn. 

A  peer  cannot  lose  his  nobility  but  by  death  or  attainder.  It  hath 
been  said  indeed  that  if  a  baron  wastes  his  estate  so  that  he  is  not 
able  to  support  the  degree,  the  king  may  degrade  him;  but  it  is  expressly 
held  by  later  authorities  that  a  peer  cannot  be  degraded  but  by  act  of 
parliament. 

The  commonalty,  like  the  nobility,  are  divided  into  several  degrees, 
and  as  the  lords,  though  different  in  rank,  yet  all  of  them  are  peers  in 
respect  of  their  nobility,  so  the  commoners,  though  some  are  greatly  su- 
perior to  others,  yet  all  are  in  law  peers  in  respect  of  their  want  of 
nobility.  [403] 

Now  the  first  personal  dignity  after  the  nobility  is  a  knight  of  the  order 
of  St,  George,  or  of  the  Garter,  first  instituted  by  Edward  III.  A.  D.  1344. 
Next  (but  not  till  after  certain  official  dignities,  as  Privy  Counselors,  the 
Chancellors  of  the  Exchequer  and  Duchy  of  Lancaster,  the  Chief  Justice 
of  the  King's  Bench,  the  Master  of  the  Rolls,  and  the  other  English 
judges)  follows  a  knight  banneret,  who  indeed  by  statutes  5  Ric.  II.  st.  2, 
c.  4,  and  14  Ric.  II.  c.  11,  is  ranked  next  after  barons  and  his  precedence 
before  the  younger  sons  of  viscounts  was  confirmed  to  him  by  order 
of  King  James  I.  in  the  tenth  year  of  his  reign.  But  in  order  to  entitle 
himself  to  this  rank  he  must  have  been  created  by  the  king  in  person, 
in  the  field,  under  the  royal  banners,  in  time  of  open  war.  Else  he  ranks 
after  baronets,  who  are  the  next  order,  which  title  is  a  dignity  of  in- 
heritance created  by  letters-patent  and  usually  descendible  to  the  issue 
male.  Next  follow  knights  of  the  bath,  an  order  instituted  by  King 
Henry  IV.  and  revived  by  King  George  I.  [404]  They  are  so  called  from 
the  ceremony  of  bathing  the  night  before  their  creation.  The  last  of 
these  inferior  nobility  are  knights  bachelors,  the  most  ancient,  though 
the  lowest,  order  of  knighthood  amongst  us. 


Chap.  XII.]  Of  the  Civil  State.  '  93 

These,  Sir  Edward  Coke  says,  are  all  the  names  of  dignity  in  this 
kingdom,  esquires  and  gentlemen  being  only  names  of  worship.  But 
before  these  last  the  heralds  rank  all  colonels,  Serjeants  at  law,  and 
doctors  in  the  three  learned  professions.  [405] 

Esquires  and  gentlemen  are  confounded  together  by  Sir  Edward  Coke, 
who  observes  that  every  esquire  is  a  gentleman,  and  a  gentleman  is  de- 
fined to  be  one  qui  arma  gerit,  who  bears  coat  armor,  the  grant  of  which 
adds  gentility  to  a  man's  family.  [406]  It  is  indeed  a  matter  somewhat 
unsettled  what  constitutes  the  distinction,  or  who  is  a  real  esquire,  for 
it  is  not  an  estate,  however  large,  that  confers  this  rank  upon  its  owner. 
Camden,  who  was  himself  a  herald,  distinguishes  them  the  most  accur- 
ately, and  he  reckons  up  four  sorts  of  them:  1.  The  eldest  sons  of 
knights,  and  their  eldest  sons,  in  perpetual  succession;  2.  The  eldest 
sons  of  younger  sons  of  peers,  and  their  eldest  sons  in  like  perpetual 
succession,  both  which  species  of  esquires  Sir  Henry  Spelman  entitles 
armigeri  natalitii;^  3.  Esquires  created  by  the  king's  letters-patent  or 
other  investiture,  and  their  eldest  sons;  4.  Esquires  by  virtue  of  their 
offices,  as  justices  of  the  peace  and  others  who  bear  any  office  of  trust 
under  the  crown.  To  these  may  be  added  the  esquires  of  knights  of  the 
bath,  each  of  whom  constitutes  three  at  his  installation;  and  all  foreign, 
nay  Irish  peers,  for  not  only  these,  but  the  eldest  sons  of  peers  of  Great 
Britain,  though  frequently  titular  lords,  are  only  esquires  in  the  law, 
and  must  be  so  named  in  all  legal  proceedings.  As  for  gentlemen,  says 
Sir  Thomas  Smith,  they  be  made  good  cheap  in  this  kingdom,  for  whoso- 
ever studieth  the  laws  of  the  realm,  who  studieth  in  the  universities, 
who  prof esseth  the  liberal  sciences,  and,  to  be  short,  who  can  live  idly 
and  without  manual  labor,  and  will  bear  the  port,  charge,  and  counten- 
ance of  a  gentleman,  he  shall  be  called  master  and  shall  be  taken  for  a 
gentleman.  A  yeoman  is  he  that  hath  free  land  of  forty  shillings  by 
the  year,  who  was  anciently  thereby  qualified  to  serve  on  juries,  vote  for 
knights  of  the  shire,  and  do  any  other  act  where  the  law  requires  one 
that  is  probus  et  legalis  homo?  [407] 

The  rest  of  the  commonalty  are  tradesmen,  artificers,  and  laborers, 
who,  as  well  as  all  others,  must,  in  pursuance  of  the  statute  1  Hen.  V. 
c.  5,  be  styled  by  the  name  and  addition  of  their  estate,  degree,  or 
mystery,  and  the  place  to  which  they  belong,  or  where  they  have  been 
conversant,  in  all  original  writs  of  actions  personal,  appeals,  and  in- 
dictments, upon  which  process  of  outlawry  may  be  awarded,  in  order, 
as  it  should  seem,  to  prevent  any  clandestine  or  mistaken  outlawry,  by 
reducing  to  a  specific  certainty  the  person  who  is  the  object  of  its  process. 

2.  Armbearers  by  birth.  3.  Good  and  lawful  man. 


94  MiLlTAEY   AND   MaKITIME    StATES.  [BoOK  I, 


CHAPTER  XIII. 

OF  THE  MILITARY  AND  MARITIME  STATES. 

The  military  state  includes  tbe  whole  of  the  soldiery,  or  such  persons 
as  are  peculiarly  appointed  among  the  rest  of  the  people  for  the  safe- 
guard and  defence  of  the  realm,  [408]  [The  subject-matter  of  this  chap- 
ter has  no  application  in  the  United  States.] 


CiiAP.  XIV.]  Of  Master  and  Seevant. 


95 


CHAPTEK  XIV. 


OP   MASTER   AND    SERVANT. 

The  three  great  relations  in  private  life  are,  1.  That  of 
master  and  servant,  which  is  founded  in  convenience,  where- 
by a  man  is  directed  to  call  in  the  assistance  of  others  where 
his  own  skill  and  labor  will  not  be  sufficient  to  answer  the 
cares  incumbent  upon  him.  [422]  2.  That  of  husband  and 
wife,  which  is  founded  in  nature  but  modified  by  civil  so- 
ciety, —  the  one  directing  man  to  continue  and  multiply  his 


1.  In  the  older  books  the  entire  law 
of  agency  was  comprised  and  dis- 
cussed under  the  head  "  Master  and 
Servant."  The  author's  discussion  of 
this  topic  is  so  brief,  that  a  summary 
of  the  modern  law  of  agency,  though 
necessarily  very  brief,  will  be  given 
here,  references  for  details  being 
made  principally  to  the  recent  work 
of  Mr.  Tiffany  upon  the  subject. 

An  agent  may  be  defined  as  a  per- 
son authorized  by  another,  called  the 
principal,  either  by  prior  authority 
duly  conferred,  or  by  subsequent  rati- 
fication, to  do  any  legal  act  in  his, 
the  principal's,  behalf.  Tiffany, 
Agency,  1-3,  where  a  collection  of 
definitions  will  be  found  in  the  notes. 
A  servant  is  included  within  this  defi- 
nition, the  only  difference  being  in 
tlie  nature  of  the  services.     Id.,  p.  5. 

The  relation  may  be  created  by  ap- 
pointment, by  ratification  of  acts 
done  as  an  agent,  or  by  estoppel;  and 
the  authority  may  be  conferred,  un- 
less otherwise  prescribed  by  statute, 
by  parol.  However,  authority  to  ex- 
ecute a  deed  must  be  conferred  by  a 
sealed  instrument.  Tiffany,  Agency, 
15,  20,  and  cases  cited.    In  some  pe- 


culiar cases  an  agency  may  be  in- 
ferred by  necessity  from  the  relations 
of  the  parties.  Tiffany,  Agency,  39, 
and  cases  cited,  where  the  subject  is 
discussed  in  detail. 

As  a  rule  any  person  capable  of 
contracting  may  act  by  an  agent.  An 
infant,  insane  person  or  a  married 
woman  cannot  act  by  an  agent, 
though  as  to  infants  and  insane  per- 
sons the  tendency  is  to  limit  the  ex- 
ception to  authority  conferred  by  a 
sealed  instrument.  See  Tiffany, 
Agency,  94;  Ewell's  Lead.  Cases  (1st 
Ed.),  44,  note  and  cases  cited. 

Any  person,  even  one  under  a  dis- 
ability, may  be  an  agent  to  such  an 
extent  as  to  bind  the  principal.  If 
one  sets  a  vicious  dog  upon  another 
to  his  damage,  though  the  dog  can 
hardly  be  called  an  agent,  the  one 
so  setting  him  on  would  be  clearly 
liable  for  the  injury. 

The  relation  of  agency  once  cre- 
ated, may  be  terminated  by  limita- 
tion contained  in  the  terms  of  the 
appointment,  by  the  act  of  the  par- 
ties or  by  operation  of  law,  as  by  the 
death  of  either  principal  or  agent, 
the    insanity    of    the    principal,    the 


96 


Of  Mastee  and  Servant. 


[Book  I. 


species,  the  other  prescribing  the  manner  in  which  that 
natural  impulse  must  be  confined  and  regulated.  3.  That 
of  parent  and  child,  which  is  consequential  to  that  of  mar- 
riage, being  its  principal  end  and  design,  and  it  is  by  virtue 
of  this  relation  that  infants  are  protected,  maintained,  and 
educated.  4.  That  of  guardian  and  ward,  which  is  a  kind 
of  artificial  parentage  in  order  to  supply  the  deficiency, 
whenever  it  happens,  of  the  natural. 

I.  As  to  the  several  sorts  of  servants,  I  have  formerly 
observed  that  pure  and  proper  slavery  does  not  —  nay,  can- 
not —  subsist  in  England,  —  such,  I  mean,  whereby  an  ab- 


marriage  of  a  feme  sole  prin- 
cipal, the  bankruptcy  of  the  princi- 
pal, or  by  war  where  the  principal 
and  agent  are  citizens  of  different 
and  belligerent  countries.  Tiffany, 
Agency,  ch.  6,  and  cases  cited.  Where, 
however,  the  authority  constitutes  a 
security  or  is  coupled  with  an  inter- 
est in  the  agent,  the  death  of  the 
principal  does  not  revoke  the  au- 
thority. 

As  to  the  liability  of  the  principal 
for  the  acts  of  his  agent,  he  is  liable 
to  third  persons  for  every  act  done 
by  his  agent,  within  the  real  or  ap- 
parent scope  of  his  authority.  This 
is  the  broadest  and  most  important 
rule  in  this  branch  of  the  law. 
The  principal  is  not,  however,  as  a 
rule  criminally  liable  for  the  act  of 
his  agent,  unless  he  has  previously 
actually  authorized  the  criminal  act. 
See  Tiffany,  Agency,  269,  297;  Ewell's 
Evans    Agency,   *453. 

"  A  party  to  a  contract  made  by 
an  agent  in  the  name  of  his  principal, 
is  liable  thereon  to  the  principal,  who 
alone  may  sue  thereon."  And  in  such 
action  the  fraud,  misrepresentation, 
etc..  of  the  agent  within  the  real  or 
apparent  scope  of  his  authority  will 
constitute  a  defence  in  the  same  man- 


ner as  if  the  act  of  the  agent  had 
been  committed  by  his  principal. 
Tiffany,  Agency,  ch.  12,  where  the 
cases  are  fully  collected. 

"  Where  a  third  person  by  his 
wrongful  act  inflicted  upon  a  servant 
deprives  the  master  of  his  services, 
or  knowingly  entices  from  the  service 
of  the  master  a  servant  employed  un- 
der a  contract,  such  person  is  liable 
to  the  master  for  the  loss  of  service 
thereby  caused."  Tiffany,  Agency, 
328,  and  cases  cited.  See  the  leading 
case  of  Lumley  v.  Gye,  2  Ell.  &  B. 
216;  Cooley  on  Torts,  "279;  Hale  on 
Torts,  362. 

A  duly  authorized  contract  made 
by  an  agent  in  the  name  of  his  prin- 
cipal imposes  no  liability  upon  the 
agent.  The  principal  alone  is  liable. 
But  wliere  the  agent  contracts  per- 
sonally or  without  authority  he  is 
liable  upon  his  contract.  See  Tiffany, 
Agency,  330,  355,  368.  See  exceptions 
to  rule  stated  on  page  355. 

It  is  the  duty  of  the  agent  to  his 
principal  to  obey  legal  instructions, 
to  exercise  skill,  care,  diligence  and 
good  faith  and  to  account  to  his  prin- 
cipal ;  and  when  he  has  so  performed 
the  stipulated  services  he  is  entitled 
to  compensation  therefor,  unless  the 


Chap.  XIV.]  Of  Master  and  Seevant.  97 

solute  and  unlimited  power  is  given  to  the  master  over  the 
life  and  fortune  of  the  slave.  [423]  And  now  it  is  laid 
down  that  a  slave  or  negro,  the  instant  he  lands  in  England, 
becomes  a  freeman,  —  that  is,  the  law  will  protect  him  in 
the  enjoyment  of  his  person  and  his  property.  [424]  Yet 
with  regard  to  any  right  which  the  master  may  have  law- 
fully acquired  to  the  perpertual  service  of  John  or  Thomas, 
this  will  remain  exactly  in  the  same  state  as  before ;  for  this 
is  no  more  than  the  same  state  of  subjection  for  life  which 
every  apprentice  submits  to  for  the  space  of  seven  years, 
or  sometimes  for  a  longer  term.^    [425] 

1.  The  first  sort  of  servants,  therefore,  acknowledged  by  the  laws  of 
England  are  menial  serTants,  so  called  from  being  intra  maenia,  [within 
the  walls]  or  domestics.  The  contract  between  them  and  their  mast- 
ers arises  upon  the  hiring.  If  the  hiring  be  general,  without  any  par- 
ticular time  limited,  the  law  construes  it  to  be  a  hiring  for  a  year  [not 
the  rule  in  the  United  States],  but  the  contract  may  be  made  for  any 
larger  or  smaller  term.  All  single  men  between  twelve  years  old  and 
sixty,  and  married  ones  under  thirty  years  of  age,  and  all  single  women 
between  twelve  and  forty,  not  having  any  visible  livelihood,  are  com- 
pellable by  two  justices  to  go  out  to  service  in  husbandry,  or  certain 
specific  trades,  for  the  promotion  of  honest  industry  [not  law  in  the 
United  States] ;  and  no  master  can  put  away  his  servant,  or  servant 
leave  his  master  after  being  so  retained,  either  before  or  at  the  end  of 
Ms  term,  without  a  quarter's  warning,  unless   upon   reasonable  cause, 

contract    otherwise    stipulates,    even  one  year,  there  seems  to.  be  no  reason 

thougli  no  benefit  accrues  to  his  prin-  to   prevent    his   contracting   to    serve 

cipal.     Tiffany,  Agency,  395-438,  439,  for  one  hundred  years,   if  he   should 

445,  and  cases  cited.  so   long   live,   tliough   in   general   the 

The    foregoing    are    the    principal  courts  would  be  inclined  to   consider 

rules  of   the   law   of   agency,   though  it    an    improvident    engagement,    and 

stated  very  briefly.     For  details,  see  would  not  be  very  strict  in  enforcing 

the  works  cited.  it.     But  there  could  be  no  doubt  but 

2.  "  The  meaning  of  this  sentence  such  a  contract  with  a  person  in  a 
is  not  very  intelligible.  If  a  right  to  state  of  slavery  would  be  absolutely 
perpetual  service  can  be  acquired  law-  null  and  void." —  Christian.  It  was 
fully  at  all,  it  must  be  acquired  by  decided  in  1772,  on  habeas  corpus  in 
a  contract  with  one  who  is  free,  who  the  case  of  James  Somersett,  that  a 
is  sui  juris  [of  his  own  right]  and  heathen  negro  when  brought  to  Eng- 
competent  to  contract.  Such  a  hiring  land  owes  no  service  to  an  American 
may  not  perhaps  be  illegal  and  void,  or  any  other  master.  20  State  Trials, 
If   a   man  can  contract   to   serve   for  1;  Lofft's  Rep.,  1. 

7 


98  Of  Master  and  Servant.  [Book  T. 

to  be  allowed  by  a  justice  of  tbe  peace.'^  But  they  may  part  by  consent, 
or  make  a  special  bargain.  [426] 

2.  Another  species  of  servants  are  called  apprentices 
(from  apprendre,  to  learn),  and  are  usually  bound  for  a 
term  of  years  by  deed  indented,  or  indentures,  to  serve  their 
masters  and  be  maintained  and  instructed  by  them.  This 
is  usually  done  to  persons  of  trade,  in  order  to  learn  their 
art  and  mystery,  and  sometimes  very  large  sums  are  given 
with  them  as  a  premium  for  such  their  instruction;  but  it 
may  be  done  to  husbandmen  —  nay,  to  gentlemen  —  and 
others.  And  children  of  poor  persons  may  be  apprenticed 
out  by  the  overseers,  with  consent  of  two  justices,  till 
twenty-one  years  of  age,  to  such  persons  as  are  thought 
fitting,  for  which  purposes  our  statutes  have  made  the  in- 
dentures obligatory,  even  though  such  parish  apprentice  be 
a  minor.^ 

3.  A  third  species  of  servants  are  laborers,  who  are  only  hired  by  the 
day  or  the  week,  and  do  not  live  intra  maenia  [within  the  walls]  as  part 
of  the  family,  concerning  whom  the  statutes  before  cited  have  made 
many  very  good  regulations:  1,  Directing  that  all  persons  who  have  no 
visible  effects  may  be  compelled  to  work;  [427]  2,  Defining  how  long  they 
must  continue  at  work  in  summer  and  in  winter;  3,  Punishing  such 
as  leave  or  desert  their  work;  4,  Empowering  the  justices  at  sessions, 
or  the  sheriff  of  the  county,  to  settle  their  wages;  and  5,  Inflicting  penal- 
ties on  such-  as  either  give  or  exact  more  wages  than  are  so  settled.^ 

4.  There  is  yet  a  fourth  species  of  servants,  if  they  may 
be  so  called,  being  rather  in  a  superior,  a  ministerial,  capac- 
ity, such  as  stewards,  factors,  and  bailiffs,  whom,  however, 
the  law  considers  as  servants  pro  tempore,  with  regard  to 
such  of  their  acts  as  affect  their  master's  or  employer's 
property.    Which  leads  me  to  consider,  — 

3.  Here,  if  discharged  without  cause,  in  this  country.  Consult  the  local 
the  servant  may,  if  ready  and  willing      statutes. 

to  serve,  collect  wages  for  the  whole  5.  The  distinction  between  menial 
period  contracted  for.  Justices  of  the  servants  and  laborers  does  not  pre- 
peace  have  no  such  jurisdiction  in  the  vail  in  the  United  States.  See,  how- 
United   States.  ever,  state  statutes  upon  the  subject 

4.  Variously    regulated   by   statute  of  vagrancy. 


Chap.  XIV.]  Or  Master  and  Servant.  99 

II.  The  manner  in  which  their  relation  of  service  affects 
either  the  master  or  servant. 

And,  first,  by  hiring  and  service  for  a  year,  or  apprenticeship  under 
indentures,  a  person  gains  a  settlement  in  that  parish  wherein  he  last 
served  forty  days.  In  the  next  place,  persons  serving  seven  years  as 
apprentices  to  any  trade  have  an  exclusive  right  to  exercise  that  trade 
in  any  part  of  England.     [Repealed.] 

A  master  may  by  law  correct  his  apprentice  for  negli- 
gence or  other  misbehavior,  so  it  be  done  with  moderation,® 
though,  if  the  master  or  master's  wife  beats  any  other  ser- 
vant of  full  age,  it  is  good  cause  of  departure.    [428] 

By  service  all  servants  and  laborers,  except  apprentices, 
become  entitled  to  wages:  according  to  their  agreement,  if 
menial  servants.  [And  in  the  United  States  in  all  other 
cases  of  service  also,  where  the  relation  is  created  by  con- 
tract, either  according  to  the  terms  of  the  agreement  or 
upon  a  quantum  meruit  J 

III.  Let  us,  lastly,  see  how  strangers  may  be  affected  by 
this  relation  of  master  and  servant;  or  how  a  master  may 
behave  towards  others  on  behalf  of  his  servant;  and  what 
a  servant  may  do  on  behalf  of  his  master.    [429] 

And  first,  the  master  may  maintain,  that  is,  abet  and 
assist,  his  servant  in  any  action  at  law  against  a  stranger; 
whereas  in  general  it  is  an  offence  against  public  justice  to 
encourage  suits  and  animosities  by  helping  to  bear  the  ex- 
pense of  them,  and  is  called  in  law  maintenance.  A  master 
also  may  bring  an  action  against  any  man  for  beating  or 
maiming  his  servant;  but  in  such  case  he  must  assign,  as  a 
special  reason  for  so  doing,  his  own  damage  by  the  loss  of 
his  service,  and  this  loss  must  be  proved  upon  the  trial,  A 
master  likewise  may  justify  an  assault  in  defence  of  his 
servant,  and  a  servant  in  defence  of  his  master,  —  the  mas- 
ter, because  he  has  an  interest  in  his  servant,  not  to  be  de- 

6.  The  text  is  clearly  sustained  by  tices  and  menial  servants  under  age. 

the    early    authorities.      See    Reeve's  2  Kent  Com.,  261;  Reeve's  Dom.  Rel., 

Dom.  Rel.,  *374,  and  cases  cited.   The  *375. 

better  opinion  now  is  that  this  right  7.  See  this  term  explained  post,  iin- 

cannot   be   extended  beyond   appren-  der  the  head  Pleading. 


100  ^'        Of  Master  and  Servant.  [Book  I. 

prived  of  his  service;  the  servant,  because  it  is  part  of  his 
duty,  for  which  he  receives  his  wages,  to  stand  by  and 
defend  his  master.  Also  if  any  person  do  hire  or  retain  my 
servant,  being  in  my  service,  for  which  the  servant  de- 
parteth  from  me  and  gpeth  to  serve  the  other,  I  may  liave 
an  action  for  damages  against  both  the  new  master  and  the 
servant,  or  either  of  them.  But  if  the  new  master  did  not 
know  that  he  is  my  servant,  no  action  lies,  unless  he  after- 
wards refuse  to  restore  him  upon  information  and  demand. 

As  for  those  things  which  a  servant  may  do  on  behalf  of 
his  master,  they  seem  all  to  proceed  upon  this  principle: 
that  the  master  is  answerable  for  the  act  of  his  servant  if 
done  by  his  command,  either  expressly  given  or  implied; 
nam  qui  facit  per  alinniy  faclt  per  se.^  Therefore,  if  the  ser- 
vant commit  a  trespass  by  the  command  or  encouragement 
of  his  master,  the  master  shall  be  guilty  of  it,  though  the 
servant  is  not  thereby  excused,  for  he  is  only  to  obey  his 
master  in  matters  that  are  honest  and  lawful.  [430]  If  an 
innkeeper's  servants  rob  his  guests,  the  master  is  bound 
to  restitution;  for  as  there  is  a  confidence  reposed  in  him 
that  he  will  take  care  to  provide  honest  servants,  his  negli- 
gence is  a  kind  of  implied  consent  to  the  robbery;  nam  qui 
non  prohibet,  cum  prohibere  possit,  jubet.^  So  likewise  if 
the  drawer  at  a  tavern  sells  a  man  bad  wine,  whereby  his 
health  is  injured,  he  may  bring  an  action  against  the  master; 
for  although  the  master  did  not  expressly  order  the  servant 
to  sell  it  to  that  person  in  particular,  yet  his  permitting 
him  to  draw  and  sell  it  at  all  is  impliedly  a  general  com- 
mand. 

In  the  same  manner,  whatever  a  servant  is  permitted  to 
do  in  the  usual  course  of  his  business,  is  equivalent  to  a 
general  command.  If  I  pay  money  to  a  banker's  servant, 
the  banker  is  answerable  for  it;  if  I  pay  it  to  a  clergyman's 
or  a  physician's  servant,  whose  usual  business  it  is  not  to 
receive  money  for  his  master,  and  he  embezzles  it,  I  must 

8.  For   who    does   a    thing   by    an-      when   lie  has  power  to  do   so,  corn- 
other,  does  ic  himself.  mands. 

9.  For  he  who  does    not    prohibit 


Chap.  XIV.]  Or  Mastee  and  Seevant.      —  101 

pay  it  over  again.  If  a  steward  lets  a  lease  of  a  farm  with- 
out the  owner's  knowledge,  the  owner  must  stand  to  the 
bargain,  for  this  is  the  steward's  business.  A  wife,  a  friend, 
a  relation  that  use  to  transact  business  for  a  man,  are  quoad 
hoc  his  servants,  and  the  principal  must  answer  for  their 
conduct;  for  the  law  implies  that  they  act  under  a  general 
command.  And  without  such  a  doctrine  as  this  no  mutual 
intercourse  between  man  and  man  could  subsist  with  any 
tolerable  convenience.  If  I  usually  deal  with  a  tradesman 
by  myself,  or  constantly  pay  him  ready  money,  I  am  not 
answerable  for  what  my  servant  takes  up  upon  trust;  for 
here  is  no  implied  order  to  the  tradesman  to  trust  my  ser- 
vant. But  if  I  usually  send  him  upon  trust,  or  sometimes 
on  trust  and  sometimes  with  ready  money,  I  am  answerable 
for  all  he  takes  up;  for  the  tradesman  cannot  possibly  dis- 
tinguish when  he  comes  by  my  order,  and  when  upon  his 
own  authority. 

If  a  servant,  lastly,  by  his  negligence  does  any  damage 
to  a  stranger,  the  master  shall  answer  for  his  neglect.  If 
a  smith's  servant  lames  a  horse  while  he  is  shoeing  him,  an 
action  lies  against  the  master,  and  not  against  the  servant. 
[431]  But  in  these  cases  the  damage  must  be  done  while 
he  is  actually  employed  in  the  master's  service,  otherwise 
the  servant  shall  answer  for  his  own  misbehavior.  Upon 
this  principle,  by  the  common  law,  if  a  servant  kept  his 
master's  fire  negligently,  so  that  his  neighbor's  house  was 
burned  down  thereby,  an  action  lay  against  the  master, 
because  this  negligence  happened  in  his  service;  otherwise, 
if  the  servant,  going  along  the  street  with  a  torch,  by  negli- 
gence sets  fire  to  a  house,  for  there  he  is  not  in  his  master's 
immediate  service,  and  must  himself  answer  the  damage 
personally.  But  now  the  common  law  is,  in  the  former  case, 
altered  by  statute,  6  Anne  c.  3  [re-enacted  with  some  ex- 
tensions of  place  by  14  Geo.  III.  c.  78,  <^  86],  which  ordains 
that  no  action  shall  be  maintained  against  any  in  whose 
house  or  chamber  any  fire  shall  accidentally  begin ;  for  their 
own  loss  is  sufficient  punishment  for  their  own  or  their 
servant's  carelessness.     [Held,  that  the  word  '*  accident- 


102  "  Of  Master  and  Servant.  [Book  I. 

ally  "  does  not  apply  to  fires  caused  by  the  negligence  of 
either  the  owner  or  any  of  his  servants.  Filliter  v.  Phip- 
pard,  11  Q.  B.  347.]  A  master  is,  lastly,  chargeable  if  any 
of  his  family  layetli  or  casteth  anything  out  of  his  house 
into  the  street  or  common  highway,  to  the  damage  of  any 
individual,  or  the  common  nuisance  of  his  Majesty's  liege 
people ;  for  the  master  hath  the  superintendence  and  charge 
of  all  his  household. 

We  may  observe  that  in  all  the  cases  here  put  the  master 
may  be  frequently  a  loser  by  the  trust  reposed  in  his  ser- 
vant, but  never  can  be  a  gainer;  he  may  frequently  be 
answerable  for  his  servant's  misbehavior,  but  never  can 
shelter  himself  from  punishment  by  laying  the  blame  on  his 
agent.  [432]  The  reason  of  this  is  still  uniform  and  the 
same:  that  the  wrong  done  by  the  servant  is  looked  upon 
in  law  as  the  wrong  of  the  master  himself;  and  it  is  a  stand- 
ing maxim,  that  no  man  shall  be  allowed  to  make  any  ad- 
vantage of  his  own  wrong.  ^ 

1.  See  Broom's  Legal  Maxims,  *255-  ims  and  their  explanation  in  the  vol- 
270;  Co.  Litt.,  1486.  The  student  is  ume  first  above  cited.  It  is  a  very 
advised  to  study  diligently  the  max-      valuable  work. 


Chap.  XV.]  Of  Husband  and  Wife.  108 


CHAPTER  XV. 

OF  HUSBAND  AND  WIFE. 

1.  Our  law  considers  marriage  in  no  other  light  than  as 
a  civil  contract.  [433]  [It  constitutes  a  status,  or  domestic 
relation  arising  out  of  contract.]  The  holiness  of  the  matri- 
monial state  is  left  entirely  to  the  ecclesiastical  law;  the 
temporal  courts  not  having  jurisdiction  to  consider  unlaw- 
ful marriage  as  a  sin,  but  merely  as  a  civil  inconvenience. 
The  punishment,  therefore,  or  annulling  of  incestuous  or 
other  unscriptural  marriages  is  the  province  of  the  spiritual 
courts  [here,  usually  of  courts  of  chancery],  which  act  pro 
salute  animae.^  And,  taking  it  in  this  civil  light,  the  law 
treats  it  as  it  does  all  other  contracts,^  allowing  it  to  be 
good  and  valid  in  all  cases  w^here  the  parties  at  the  time 
of  making  it  were,  in  the  first  place,  tcilling  to  contract; 
■secondly,  able  to  contract;  and,  lastly,  actually  did  contract, 
in  the  proper  forms  and  solemnities  required  by  law. 

First,  they  must  be  willing  to  contract.  [434]  ''  Con- 
sensus, non  concuhitus,  facit  nuptias/'  is  the  maxim  of  the 
civil  law  in  this  case ;  and  it  is  adopted  by  the  common  law- 
yers, who  indeed  have  borrowed,  especially  in  ancient  times, 
-almost  all  their  notions  of  the  legitimacy  of  marriage  from 
the  canon  and  civil  laws. 

1.  For  the  safety  of  the  soul.  lowed  by  consummation/  it  amounts 

2.  It  differs  from  an  ordinary  con-  in  the  United  States  generally  to  a 
tract  in  that  it  is  indissoluble  at  the  marriage  which  the  parties  cannot 
will  of  the  parties.  Incurable  insan-  dissolve,  if  they  are  competent  as  to 
ity  arising  subsequent  to  the  mar-  age  and  consent.  2  Kent.  Com.,  89; 
riage  will  not  avoid  it.  In  its  incep-  Reeve,  Dom.  Rel.,  ch.  15,  p.  *195,  and 
tion,  however,  it  arises  from  con-  notes;  Tiffany,  Dom.  Rel.,,  7-37.  See, 
tract  and  the  early  common  law  re-  however,  Beamish  v.  Beamish,  9  H. 
•quired  no  ecclesiastical  sanction  to  L.  Gas.  274;  Queen  v.  Willis,  10  CI. 
render  it  valid.  If  it  be  made  per  &  F.  534;  Beverlin  v.  Beverlin,  29  W. 
■verba  de  praesenti  (by  words  of  the  Va.  732;  Commonwealth  v.  Munson, 
present  time)  and  is  not  followed  by  127  Mass.  459;  Dimcan  v.  Duncan,  10 
cohabitation,  or  per  verba  de  futuro  Ohio  St.  181;  Cheney  v.  Arnold,  15 
<by  words  of  the  future)   and  is  fol-  N.  Y.  345. 


1 04  Of  Husband  and  Wife.  [Book  I. 

Secondly,  they  must  be  able  to  contract.  In  general,  all 
persons  are  able  to  contract  themselves  in  marriage,  unless 
they  labor  under  some  particular  disabilities  and  incapaci- 
ties. What  those  are,  it  will  be  here  our  business  to 
inquire. 

Now  these  disabilities  are  of  two  sorts:  first,  such  as  are 
canonical,  and  therefore  sufficient  by  the  ecclesiastical  laws, 
to  avoid  the  marriage  in  the  spiritual  court.  But  these  in 
our  law  only  make  the  marriage  voidable,  and  not  ipso  facto 
void,  until  sentence  of  nullity  be  obtained.  Of  this  nature 
are  precontract,  [abolished]  .consanguinity,  or  relation  by 
blood  and  affinity,  or  relation  by  marriage,^  and  some  par- 
ticular corporal  infirmities.  But  such  marriages  not  being 
void  ah  initio,  but  voidable  only  by  sentence  of  separation^ 
they  are  esteemed  valid  to  all  civil  purposes  unless  such 
separation  is  actually  made  during  the  life  of  the  parties. 
[Here,  whether  a  marriage  is  void  or  voidable,  depends 
upon  the  w^ords  of  the  statute.]  For,  after  the  death  of 
either  of  them,  the  courts  of  common  law  will  not  suffer 
the  spiritual  courts  to  declare  such  marriages  to  have  been 
void ;  because  such  declaration  cannot  now  tend  to  the  refor- 
mation of  the  parties.  It  is  declared  by  the  statute  32  Hen. 
VIII.  c.  38,  that  nothing,  God's  law  except,  shall  impeach 
any  marriage,  but  within  the  Levitical  degrees,  the  farthest 
of  which  is  that  between  uncle  and  niece.    [435] 

The  other  sorts  of  disabilities  are  those  which  are  created,^ 
or  at  least  enforced,  by  the  municipal  laws.  These  civil 
disabilities  make  the  contract  void  ab  initio,*  and  not 
merely  voidable.  Not  that  they  dissolve  a  contract  already 
formed,  but  they  render  the  parties  incapable  of  forming 
any  contract  at  all;  they  do  not  put  asunder  those  who  are 
joined  together,  but  they  previously  hinder  the  junction. 
[436] 


3.  These  disabilities,  consanguinity  gree   reckoned  according  to  the  civil 

and  affinity,  are  now  very  generally  law,    inclusive,    that    is   nearer    than 

defined  and  regulated  by  statute.    In  first  cousins.     Tiffany,  Dora.  Rel.  24, 

the  absence  of  statute  there  can  be  and  cases  cited.     See  the  local  stat- 

no  valid  marriage  within  the  Leviti-  utes. 

cal  degrees,  i.  e.,  within  the  third  de-  4.  From  the  beginning. 


Chap.  XV.]  '   Of  Husband  and  Wife.  105 

1.  The  first  of  these  legal  disabilities  is  a  prior  marriage, 
or  having  another  husband  or  wife  living:  in  which  case, 
besides  the  penalties  consequent  upon  it  as  a  felony,  the 
second  marriage  is  to  all  intents  and  purposes  void.'^ 

2.  The  next  legal  disability  is  want  of  age.  If  a  boy 
under  fourteen  or  a  girl  under  twelve  years  of  age  marries, 
this  marriage  is  only  inchoate  and  imperfect ;  and  when 
either  of  them  comes  to  the  age  of  consent  aforesaid,  they* 
may  disagree  and  declare  the  marriage  void,  without  any 
divorce  or  sentence  in  the  spiritual  court.  And  in  our  law 
it  is  so  far  a  marriage,  that  if  at  the  age  of  consent  they 
agree  to  continue  together,  they  need  not  be  married  again. 
If  the  husband  be  of  years  of  discretion  and  the  wife  under 
twelve,  when  she  comes  to  years  of  discretion  he  may  dis- 
agree as  well  as  she  may,  for  in  contracts  the  obligation 
must  be  mutual;  both  must  be  bound,  or  neither.  And  so 
it  is,  vice  versa,  when  the  wife  is  of  years  of  discretion  and 
the  husband  under.^ 

3.  Another  incapacity  arises  from  want  of  consent  of 
parents  or  guardians.  [437]  By  the  common  law,  if  the 
parties  themselves  were  of  the  age  of  consent,  there  wanted 
j^o  other  concurrence  to  make  the  marriage  valid;  and  this 
was  agreeable  to  the  canon  law.  But  by  several  statutes 
penalties  of  100/.  are  laid  on  every  clergyman  who  marries 
a  couple  either  without  publication  of  banns,  which  may 
give  notice  to  parents  or  guardians,  or  without  a  license,  to 
obtain  which  the  consent  of  parents  or  guardians  must  be 
sworn  to.'^ 

5.  This  ia  universally  the  law  In  ture  is  voidable,  although  the  adult 
this  country.  is  bound.     Holt  v.  Ward  Clarencifux, 

6.  The  age  of  consent  has  been  2  Strange,  937;  8.  c,  id.  850;  1  Bar- 
changed  by  statute  in  some  states.  '  nard  K.  B.  247,  277,  333;  2  id.  12, 
In  Illinois  it  is  17  for  males  and  14  173,  176;  Ewell's  Lead.  Cases  (1st 
for  females.  In  New  York  the  ages  Ed.),  50,  where  the  cases  are  quite 
are  respectively  18  and  16;  in  Michi-  fully  collected. 

gan    18    and    16.      Consult    the    local  7.  A   marriage   solemnized   without 

statutes.     See  R.  S.  111.,  ch.  89.    ,  such   consent   is    not    with    us    made 

While  a  contract  of  marriage  by  an  void,  neither  is  it  now  void  in  Eng- 

infant   above  the  age  of   consent   is  land.     See  local  statutes, 
valid,  a  contract  to  marry  in  the  fu- 


106  Of  Husband  and  Wipe.  [Book  I. 

4.  A  fourth  incapacity  is  want  of  reason,  without  a  com- 
petent share  of  which,  as  no  other,  so  neither  can  the  matri- 
monial contract  be  valid.  It  was  formerly  adjudged  that 
the  issue  of  an  idiot  was  legitimate,  and  consequently  that 
his  marriage  was  valid.  The  civil  law  judged  much  more 
sensibly  when  it  made  such  deprivations  of  reason  a  previ- 
ous impediment,  though  not  a  cause  of  divorce  if  they  hap- 
pened after  marriage.  [439]  And  modern  resolutions  have 
adhered  to  the  reason  of  the  civil  law,  by  determining  that 
the  marriage  of  a  lunatic,  not  being  in  a  lucid  interval,  was 
absolutely  void.® 

Lastly,  the  parties  must  not  only  be  willing  and  able  to 
contract,  but  actually  must  contract  themselves  in  due  form 
of  law,  to  make  it  a  good  civil  marriage.  Any  contract 
made  per  verba  de  presenti,  or  in  words  of  the  present  tense^ 
and  in  case  of  cohabitation  per  verba  de  futuro^  also,  be- 
tween persons  able  to  contract,  was  before  the  late  act 
deemed  a  valid  marriage  to  many  purposes,  and  the  parties 
might  be  compelled  in  the  spiritual  courts  to  celebrate  it 
in  facie  ecclesiae.^^  But  these  verbal  contracts  are  [by 
statute]  now  of  no  force  to  compel  a  future  marriage. 
Neither  is  any  marriage  at  present  valid  that  is  not  cele- 
brated in  some  parish  church  or  public  chapel,  unless  by 
dispensation  from  the  Archbishop  of  Canterbury.  It  must 
also  be  preceded  by  publication  of  banns  or  by  license  from 
the  spiritual  judge.  Many  other  formalities  are  likewise 
prescribed  by  the  act,  the  neglect  of  which,  though  penal ^ 
does  not  invalidate  the  marriage.  It  is  held  to  be  also 
essential  to  a  marriage  that  it  be  performed  by  a  person  in 
orders,  though  the  intervention  of  a  priest  to  solemnize  this 
contract  is  merely  juris  positivi^  and  not  jiois  naturalis  atit 
dirini;  it  being  said  that  Pope  Innocent  III.  was  the  first 
who  ordained  the  celebration  of  marriage  in  the  churchy 
before  which  it  was  totally  a  civil  contract.    [440]    And  in 

8.  Middleborough   v.   Rochester,    12  9.  In  words  of  the  future. 

Mass.  363;   Wightman  v.  Wightman,  9a.  In  face  of  the  church. 

4  John.  Ch.   343;   Ewell's  Lead.  Cae.  1.  Of  positive  laws,  and  not  of  nat- 

(Isi  Ed),  600-610,  and  notes.  ural  or  divine  law. 


Chap.  XV.]  Of  Husband  and  Wife.  107 

the  times  of  the  grand  rebellion  all  marriages  were  per- 
formed by  the  justices  of  the  peace,  and  these  marriages 
were  declared  valid,  without  any  fresh  solemnization,  by 
stat.  12  Car.  II.  c.  33.  But  as  the  law  now  stands  we  may 
upon  the  whole  collect  that  no  marriage  by  the  temporal 
law  is  ipso  facto^  void  that  is  celebrated  by  a  person  in 
orders,  in  a  parish  church  or  public  chapel,  or  elsewhere  by 
special  dispensation,  in  pursuance  of  banns  or  a  license,  be- 
tween single  persons,  consenting,  of  sound  mind,  and  of  the 
age  of  twenty-one  years,  or  of  the  age  of  fourteen  in  males 
and  twelve  in  females,  with  consent  of  parents  or  guardians, 
or  without  it  in  case  of  widowhood.  And  no  marriage  is 
voidable  by  the  ecclesiastical  law  after  the  death  of  either 
of  the  parties,  nor  during  their  lives,  unless  for  the  canoni- 
cal impediments  of  precontract,  —  if  that  indeed  still  exists, 
—  of  consanguinity,  and  of  affinity,  or  corporal  imbecility, 
subsisting  previous  to  their  marriage.^ 

II.  I  am  next  to  consider  the  manner  in  which  marriages 
may  be  dissolved,  and  this  is  either  by  death  or  divorce. 
There  are  two  kinds  of  divorce,  the  one  total,  the  other 
partial;  the  one  a  vinculo  matrimonii,  the  other  merely  a 
mensa  et  thoro.  The  total  divorce,  a  vinculo  matrimonii,* 
must  be  for  some  of  the  canonical  causes  of  impediment 
before  mentioned,  and  those  existing  before  the  marriage, 
as  is  always  the  case  in  consanguinity;  not  supervenient,  or 
arising  afterwards,  as  may  be  the  case  in  affinity  or  corporal 
imbecility.  For  in  cases  of  total  divorce,  the  marriage  is 
declared  null,  as  having  been  absolutely  unlawful  ab  initio,'^ 
and  the  parties  are  therefore  separated  pro  salute  anima- 
rum,^  —  for  which  reason,  as  was  before  observed,  no  di- 
vorce can  be  obtained  but  during  the  life  of  the  parties. 

2.  In  fact.  United  States,  except  in  some  states 

3.  "  The  doctrine  that  the  inter-  where  local  statutes  have  provided 
vention  of  a  person  in  holy  orders  is      otherwise."     Id. 

essential  to  marriage  has  found  small  4.  From  the  bonds  of  matrimony, 

support   in   this   country."       1    Bish.  5.  From  the  beginning. 

Mar,  &  Div.,  §  279.  "  Marriage  by  6.  For  the  safety  of  their  souls.  '. 
mere  consent  is  good  throughout  the 


108  Of  Husband  and  Wife.  [Book  I. 

The  issue  of  such  marriage  as  is  thus  entirely  dissolved  are 
bastardsJ 

Divorce  a  mensa  et  thoro  is  when  the  marriage  is  just  and 
lawful  ab  initio,  and  therefore  the  law  is  tender  of  dissolv- 
ing it;  but,  from  some  supervenient  cause,  it  becomes  im- 
proper or  impossible  for  the  parties  to  live  together,  as  in 
the  case  of  intolerable  ill-temper  or  adultery  in  either  of 
the  parties.®  [441]  With  us  in  England  adultery  is  only 
a  cause  of  separation  from  bed  and  board  [but  now  ground 
for  divorce  a  vinculo,  20  &  21  Vict.  c.  85,  <^  27].  However, 
divorces  a  vinculo  matrimonii  for  adultery  have  of  late 
years  been  frequently  granted  by  act  of  parliament.® 

In  case  of  divorce  a  mensa  et  thoro  the  law  allows  alimony 
to  the  wife,  which  is  that  allowance  which  is  made  to  a 
woman  for  her  support  out  of  the  husband's  estate,  being 
settled  at  the  discretion  of  the  ecclesiastical  judge  on  con- 
sideration of  all  the  circumstances  of  the  case.^  It  is  gen- 
erally proportioned  to  the  rank  and  quality  of  the  parties. 
[442]  But  in  case  of  elopement  and  living  with  an  adulterer 
the  law  allows  her  no  alimony. 

III.  Lastly,  the  legal  consequences  of  marriage  or  di- 
vorce. 

By  marriage,  the  husband  and  wife  are  one  person  in  law; 
that  is,  the  very  being  or  legal  existence  of  the  woman  is 
suspended  during  the  marriage,  or  at  least  is  incorporated 

7.  In  the  United  States  divorces  o  prescribed  by  statute  and  vary  in 
vinculo  are  granted  for  causes  arising  the  different  states.  In  South  Caro- 
after  marriage,  e.  g.,  for  adultery,  lina  divorce  is  not  granted.  Consult 
desertion,  etc.,  and  in  such  case  the  the  local  statutes. 

issue  are  not  bastardized.     What  the  9.  Generally    prohibited   by   consti- 

author  calls  a  divorce  a  vinculo,  cor-  tution  in  this  country, 

responds  to  a  decree  of  nullity  with  1.  Allowed  almost  of  course  before 

us.     See  Wightman  v.  Wightman,  4  decree  in  all  cases  of  bills  for  divorce 

John.   Ch.    343;    Ewell's  Lead.   Cases  as    temporary    alimony    for    counsel 

(1st  Ed.),  602.  fees,  support,  etc.,  pending  the  litiga- 

8.  A  divorce  a  mensa  et  thoro  (from  tion;  and  after  decree  as  permanent 
bed  and  board)  may  be  had  in  the  alimony  for  the  support  of  the  wife 
United  States  and  is  merely  a  judicial  and  children  if  the  equity  of  the  case 
separation,  the  marriage  bond  not  be-  warrants  it. 

ing  annulled.     Causes  for  divorce  are 


Chap.  XV.]  Of  Husband  and  Wife.  '  109 

and  consolidated  into  that  of  the  husband,  under  whose 
wing,  protection,  and  cover  she  performs  everything,  and 
is  therefore  called  in  our  law-French  a  feme-covert,  foemina 
viro  co-operta,  is  said  to  be  covert-baron,  or  under  the  pro- 
tection and  influence  of  her  husband,  her  baron,  or  lord, 
and  her  condition  during  her  marriage  is  called  her  cover- 
ture. Upon  this  principle,  of  an  union  of  person  in  husband 
and  wife,  depend  almost  all  the  legal  rights,  duties,  and 
disabilities  that  either  of  them  acquire  by  the  marriage.  I 
speak  not  at  present  of  the  rights  of  property,  but  of  such 
as  are  merely  personal.  For  this  reason  a  man  cannot  grant 
anything  to  his  wife  or  enter  into  covenant  with  her,  for  the 
grant  would  be  to  suppose  her  separate  existence,  and  to 
covenant  with  her  would  be  only  to  covenant  with  himself; 
and  therefore  it  is  also  generally  true  that  all  compacts 
made  between  husband  and  wife  when  single  are  voided  by 
the  intermarriage.^  A  woman,  indeed,  may  be  attorney 
for  her  husband,  for  that  implies  no  separation  from,  but 
is  rather  a  representation  of,  her  lord.  And  a  husband  may 
also  bequeath  anything  to  his  wife  by  will,  for  that  cannot 
take  effect  till  the  coverture  is  determined  by  his  death. 
The  husband  is  bound  to  provide  his  wife  with  necessaries 
by  law  as  much  as  himself,  and  if  she  contracts  debts  for 
them  he  is  obliged  to  pay  them;^  but  for  anything  besides 
necessaries  he  is  not  chargeable.  Also,  if  a  wife  elopes  and 
lives  with  another  man,  the  husband  is  not  chargeable  even 
for  necessaries,  at  least  if  the  person  who  furnishes  them  is 
sufficiently  apprised  of  her  elopement.  [443]     If  the  wife 

2.  See  a  collection  of  leading  cases  3.  The  husband  is  still  prima  facie 

with  notes  upon  the  common  law  dis-  liable  for  necessaries  during  cohabita- 

abilities  of  coverture  in  Ewell's  Lead,  tion  on  the  ground  of  implied  author- 

Cas.  (1st  Ed.),  245-521.  ity  as  his  agent.     When  the  husband 

In  most  of  the  United  States  these  supports  his  wife,  she  has  no  power 

disabilities  have  to  a  large  but  vary-  to   pledge  his  credit  even   for  neces- 

ing  extent  been  removed  by  statute,  saries,  unless  in  fact  authorized.     If 

Consult  the  local  statutes,  remember-  he  fails  to  support  her,  she  may  bind 

ing  that  unless  an  entirely  new  sys-  him  for  necessaries  whether  author- 

tom  has  been  introduced,  statutes  in  ized  or  not.     TiflFany,  Dom.  Rel.   (2d 

derogation  of  common  law  should  be  Ed.),  126,  127. 
strictly  construed. 


110  Of  Husband  and  Wife.  [Book  T. 

be  indebted  before  marriage  the  husband  is  bound  after- 
wards to  pay  the  debt,  for  he  has  adopted  her  and  her  cir- 
cumstances together."  If  the  wife  be  injured  in  her  person 
or  her  property  she  can  bring  no  action  for  redress  without 
her  husband's  concurrence,  and  in  his  name  as  well  as  her 
own;  neither  can  she  be  sued  without  making  the  husband 
a  defendant.^  There  is  indeed  one  case  where  the  wife  shall 
sue  and  be  sued  as  a  feme  sole,  viz.,  where  the  husband  has 
abjured  the  realm  or  is  banished,  for  then  he  is  dead  in  law, 
and  the  husband  being  thus  disabled  to  sue  for  or  defend 
the  wife,  it  would  be  most  unreasonable  if  she  had  no 
remedy,  or  could  make  no  defence  at  all.  In  criminal  prose- 
cutions, it  is  true,  the  wife  may  be  indicted  and  punished 
separately,  for  the  union  is  only  a  civil  union.®  But  in  trials 
of  any  sort  they  are  not  allowed  to  be  evidence  for  or 
against  each  other,^  partly  because  it  is  impossible  their 
testimony  should  be  indifferent,  but  principally  because  of 
the  union  of  person,  and  therefore,  if  they  were  admitted 
to  be  witnesses  for  each  other,  they  would  contradict  one 
maxim  of  law,  '^  nemo  in  'propria  causa  testis  esse  debet, '^^ 
and,  if  against  each  other,  they  would  contradict  another 
maxim,  "  nemo  tenetnr  seipsum  accusare.''^  But  where  the 
offence  is  directly  against  the  person  of  the  wife,  this  rule 
has  been  usually  dispensed  with. 

But  though  our  law  in  general  considers  man  and  wife  as 
one  person,  yet  there  are  some  instances  in  which  she  is 
separately  considered,  as  inferior  to  him,  and  acting  by  his 
compulsion.  [444]  And  therefore  all  deeds  executed  and 
acts  done  by  her  during  her  coverture  are  void,  except  it  be 

4.  This  rule  has  been  generally  7.  In  some  of  the  states  the  corn- 
abolished  by  statute  in  this  country.  mon   law   rule   prevails,   in   others   it 

5.  In  many  states  she  may  sue  and  has  been  changed  by  statute  so  as  to 
be  sued  as  a  feme  sole.  See  local  allow  husband  and  wife  to  testify 
statutes.  for  but  not  against  each  other.     Con- 

6.  See  4  Black.  Com.  22,  28,  post;  suit  the  local  statutes. 

McClain's  Cr.  L.  §§  145,  147;   1  Bish.  8.  No  one  ought  to  be  a  witness  in 

Cr.  L.    (7th  Ed.)    §§   357,  362,  as   to  his  own  cause. 

the    presumption   of   coercion   arising  9.  No  one  is  bound  to  accuse  him- 

from  the  husband's  presence.  self. 


Chap.  XV.]  Of  Husband  and  Wife.  Ill 

a  fine,  or  tlie  like  matter  of  record,  in  which  case  she  must 
l3e  solely  and  secretly  examined,  to  learn  if  her  act  be  volun- 
tary. She  cannot  by  will  devise  lands  to  her  husband,  un- 
less under  special  circumstances,  for  at  the  time  of  making 
it  she  is  supposed  to  be  under  his  coercion.^  And  in  some 
felonies  and  other  inferior  crimes,  committed  by  her  through 
constraint  of  her  husband  [and  in  his  presence],  the  law 
excuses  her;  but  this  extends  not  to  treason  or  murder.^ 

The  husband,  also,  by  the  old  law,  might  give  his  wife 
moderate  correction.^  For,  as  he  is  to  answer  for  her  mis- 
behavior, the  law  thought  it  reasonable  to  intrust  him 
with  this  power  of  restraining  her  by  domestic  chastise- 
ment, in  the  same  moderation  that  a  man  is  allowed  to  cor- 
rect his  apprentices  or  children,  for  whom  the  master  or 
parent  is  also  liable  in  some  cases  to  answer.  But  this 
power  of  correction  was  confined  within  reasonable  bounds, 
and  the  husband  was  prohibited  from  using  any  violence 
to  his  wife,  aliter  qiiam  ad  virum,  ex  causa  regiminis  et 
castigationis,  uxoris  suae,  licite  et  rationahiliter  pertinet.* 
A  wife  may  now  have  security,  of  the  peace  against  her  hus- 
band, or,  in  return,  a  husband  against  his  wife.  [445]  Yet 
the  lower  rank  of  people,  who  were  always  fond  of  the  old 
common  law,  still  claim  and  exert  their  ancient  privilege, 
and  the  courts  of  law  will  still  permit  a  husband  to  restrain 
a  wife  of  her  liberty  in  case  of  any  gross  misbehavior. 

1.  See  as  to  the  common  law  rules,  States.  See  Washburn's  Manual  of 
Ewell's  Lead.  Cases  (Ist  Ed.),  245-  Cr.  L.,  28;  McClain's  Cr.  L.,  §  243; 
521,  and  notes.  These  disabilities  Harris  v.  State,  71  Miss.  462;  State 
have,  as  before  stated,  been  more  or  v.  Oliver,  70  N.  C.  60;  Com.  v.  Mc- 
less  completely  removed  by  statute  AflFee,  108  Mass.  458.  See,  however, 
in  this  country.  Consult  the  local  contra,  State  v.  Black,  1  Winst.  256; 
statutes.  State  v.  Rhodes,  Phill.  453;  State  v. 

2.  Bishop  and  Wharton  do  not  ex-  Mabrey,  64  N.  C.  592;  State  v. 
cept  murder  and  treason.  1  Bish.  Cr.  Edens,  95  N".  C.  693;  Bradley  v.  State, 
L.  (7th  Ed.),  §  358;   1  Whart.  Cr.  L.  1  Walk.   (Miss.)   156. 

(8th  Ed.),  §   78.     She  is  prima  facie  4.  Otherwise     than     lawfully     and 

under  his  constraint,  but  this  may  be  reasonably  belong  to  the  husband  for 

rebutted.     See  note,  supra.  proper  government  and  correction  of 

3.  Not  now  the  law  in  the  United  his  wife. 


112  .  Gr  Pabent  and  Child.  [BookL 

CHAPTER  XVI. 

OF  PARENT  AND  CHILD. 

Children  are  of  two  sorts,  —  legitimate,  and  spurious,  or 
bastards.    [446] 

I.  A  legitimate  child  is  he  that  is  bom  in  lawful  wedlock, 
or  within  a  competent  time  afterwards.  "  Pater  est  quem 
nuptiae  demonstrant  ^'^  is  the  rule  of  the  civil  law,  and  this 
holds  with  the  civilians  whether  the  nuptials  happen  before 
or  after  the  birth  of  the  child.®  With  us  in  England  the 
rule  is  narrowed,  for  the  nuptials  must  be  precedent  to  the 
birth. 

1.  First,  the  duties  of  parents  to  legitimate  children 
principally  consist  in  three  particulars,  their  maintenance, 
their  protection,  and  their  education. 

The  duty  of  parents  to  provide  for  the  maintenance  of 
their  children  is  a  principle  of  natural  law.  [447]  And  the 
children  will  have  the  perfect  right  of  receiving  maintenance 
from  their  parents. 

It  is  a  principle  of  our  law  that  there  is  an  obligation  on 
every  man  to  provide  for  those  descended  from  his  loins, 
and  the  manner  in  which  this  obligation  shall  be  performed 
is  thus  pointed  out  [by  the  statute  43  Eliz.  c.  2],  The  father 
and  mother,  grandfather  and  grandmother  of  poor  impotent 
persons  shall  maintain  them  at  their  own  charges,  if  of 
sufficient  ability,  according  as  the  quarter  session  shall 
direct;  and  [stat.  5  Geo.  I.  c.  8]  if  a  parent  runs  away  and 
leaves  his  children,  the  churchwardens  and  overseers  of 
the  parish  shall  seize  his  rents,  goods,  and  chattels,  and 

5.  He  is  the  father  whom  the  nup-  Scotland.  See  Ewell's  Med.  Jur.  (2d 
tials  point  out.  Ed.),  181.    See  also  the  peculiar  stat- 

6.  In  Illinois  "  an  illegitimate  child,  ute  of  New  Mexico  respecting  ac- 
whose  parents  have  intermarried,  and  knowledging  the  child  in  writing, 
whose  father  has  acknowledged  him  Doubtless  there  are  other  statutes 
or  her  as  his  child,  shall  be  consid-  affecting  the  subject,  but  in  the  ab- 
ered  legitimate."  R.  S.  111.  Descent,  sence  of  statute  the  common  law  rule 
ch.   39,   sec.   3.     This  is  the  general  prevails, 

rule    in    continental    Europe    and    in 


CiiAP.  XVI.]  Of  Parent  and  Child.  *  H^ 

dispose  of  them  toward  their  relief.  By  the  interpretations 
which  the  courts  of  law  have  made  upon  these  statutes,  if  a 
mother  or  grandmother  marries  again,  and  was  before  such 
second  marriage  of  sufficient  ability  to  keep  the  child,  the 
husband  shall  be  charged  to  maintain  it;  for  this,  being  a 
debt  of  hers  when  single,  shall,  like  others,  extend  to  charge 
the  husband.  But  at  her  death,  the  relation  being  dissolved, 
the  husband  is  under  no  further  obligation.^    [449] 

No  person  is  bound  to  provide  a  maintenance  for  his  issue 
unless  where  the  children  are  impotent  and  unable  to  work, 
either  through  infancy,  disease,  or  accident,  and  then  is  only 
obliged  to  find  them  with  necessaries,  the  penalty  on  refusal 
being  no  more  than  20s.  a  month. 

Our  law  has  made  no  provision  to  prevent  the  disinherit- 
ing of  children  by  will,  leaving  every  man's  property  in  his 
own  disposal  upon  a  principle  of  liberty  in  this  as  well  as 
every  other  action.*  [450]  Heirs  and  children  are  favor- 
ites of  our  courts  of  justice,  and  cannot  be  disinherited  by 
any  dubious  or  ambiguous  words,  there  being  required  the 
utmost  certainty  of  the  testator's  intentions  to  take  away 
the  right  of  an  heir. 

Protection  is  also  a  natural  duty,  but  rather  permitted 
than  enjoined  by  any  municipal  laws;  natural  in  this  re- 
spect, working  so  strongly  as  to  need  rather  a  check  than  a 
spur.  A  parent  may  by  our  laws  maintain  and  uphold  his 
children  in  their  lawsuits  without  being  guilty  of  the  legal 
crime  of  maintaining  quarrels.  A  parent  may  also  justify 
an  assault  and  battery  in  defence  of  the  persons  of  his 
children.^ 

7.  Independently  of  the  express  en-  rule  is  enforced  as  in  the  ease  of  hus- 
actment  in  43  Eliz.,  c.  2,  and  other  band  and  wife,  irrespective  of  the  ex- 
subsequent  statutes,  there  is  no  legal  istence  of  the  relation  of  agency.  See 
obligation  at  common  law  on  a  par-  Tiffany,  Dom.  Rel.,  251;  Gilley  v.  Gil- 
ent  to  maintain  his  child.  The  sub-  ley,  79  Me.  292;  Brow  v.  Brightman, 
ject  is  generally  regulated  by  statute  136  Mass.  187;  Pretzinger  v.  Pretzin- 
in  the  United  States.  Mortimore  v.  ger,  45  0.  St.  452. 
Wright,  6  M.  &  W.  482;  Kelly  v.  8.  This  is  a  general  rule  of  the  com- 
Davis,  49  N.  H.  176;  Browne,  Dom.  mon  law  in  this  country. 
Rel.,  72.  In  some  of  the  states,  how-  9.  This  is  also  the  law  in  the  United 
ever,   it   is   otherwise   and  the    same  States. 

8 


114  '  Of  Parent  and  Child.  [Book  I. 

The  last  duty  of  parents  to  their  children  is  that  of  giving 
them  an  education  suitable  to  their  station  in  life,  —  a  duty 
pointed  out  by  reason,  and  of  far  the  greater  importance  of 
any.^  Our  laws,  though  their  defects  in  this  particular 
cannot  be  denied,  have  in  one  instance  made  a  wise  pro- 
vision for  breeding  up  the  rising  generation,  since  the  poor 
and  laborious  part  of  the  community,  when  past  the  age  of 
nurture,  are  taken  out  of  the  hands  of  their  parents  by  the 
statutes  for  apprenticing  poor  children,  and  are  placed  out 
by  the  public  in  such  a  manner  as  may  render  their  abilities 
in  their  several  stations  of  the  greatest  advantage  to  the 
commonwealth.    [451] 

2.  The  power  of  a  parent  over  his  children  by  our  English 
laws  is  much  more  moderate  [than  that  given  by  the  Roman 
law],  but  still  sufficient  to  keep  the  child  in  order  and 
obedience.  [452)  He  may  lawfully  correct  his  child,  being 
under  age,  in  a  reasonable  manner,  for  this  is  for  the  benefit 
of  his  education.^  The  consent  or  concurrence  of  the  parent 
to  the  marriage  of  his  child  under  age  was  also  directed  by 
our  ancient  law  to  be  obtained;  but  now  it  is  absolutely 
necessary,  for  without  it  the  contract  is  void.  [See  ante.] 
A  father  has  no  other  power  over  his  son's  estate  than  as 
his  trustee  or  guardian;^  for  though  he  may  receive  the 
profits  during  the  child's  minority,  yet  he  must  account  for 
them  when  he  comes  of  age.  [453]  He  may  indeed  have 
the  benefit  of  his  children's  labor  while  they  live  with  him 
and  are  maintained  by  him,  but  this  is  no  more  than  he  is 
entitled  to  from  his  apprentices  or  servants.*  The  legal 
power  of  a  father  —  for  a  mother,  as  such,  is  entitled  to  no 
power,  but  only  to  reverence  and  respect  —  over  the  persons 

1.  This  is  a  moral  and  not  a  legal  school  teacher.  See,  generally,  Tif- 
obligation  unless  made  such  by  stat-  fany,  Dom.  Rel.,  264,  and  cases  cited; 
ute,   as   is   the   case   in    some   states.      Browne,  Dom.  Rel.,  75. 

Consult     the     local     statutes.       See  3.  Tiffany,    Dom.    Rel.,     306,    and 

Browne,  Dom.  Rel.,  71;  Tiflfany,  Dom.  cases  cited. 

Rel.,  259.  4.  Tiffany,  Dom.  Rel.,  276.     On  the 

2.  So  in  this  country.  The  right  father's  death  the  mother  has  the 
extends  also  to  one  in  loco  parentis  same  right.     Id. 

<in    the   place   of   the   parent),   as   a 


Chap.  XVI.]  Of  Parent  and  Child.  115 

of  his  children  ceases  at  the  age  of  twenty-one.'*  Yet  till 
that  age  arrives  this  empire  of  the  father  continues  even 
after  his  death,  for  he  may  by  his  will  appoint  a  guardian 
to  his  children.  He  may  also  delegate  part  of  his  -parental 
authority,  during  his  life,  to  the  tutor  or  schoolmaster  of 
his  child,  who  is  then  in  loco  parentis,  and  has  such  a  portion 
of  the  power  of  the  parent  committed  to  his  charge,  viz.,  that 
of  restraint  and  correction,  as  may  be  necessary  to  answer 
the  purposes  for  which  he  is  employed.^* 

3.  The  duties  of  children  to  their  parents  arise  from  a 
principle  of  natural  justice  and  retribution.  For  to  those 
who  gave  us  existence  we  naturally  owe  subjection  and 
obedience  during  our  minority,  and  honor  and  reverence 
ever  after.  And  the  Athenian  laws  carried  this  principle 
into  practice  with  a  scrupulous  kind  of  nicety,  obliging  all 
children  to  provide  for  their  father  when  fallen  into  poverty, 
with  an  exception  to  spurious  children,  to  those  whose 
chastity  had  been  prostituted  by  consent  of  the  father,  and 
to  those  whom  he  had  not  put  in  any  way  of  gaining  a  liveli- 
hood.   [454] 

Our  laws  agree  with  those  of  Athens  with  regard  to  the 
first  only  of  these  particulars,  the  case  of  spurious  issue. 
In  the  other  cases  the  law  does  not  hold  the  tie  of  nature  to 
be  dissolved  by  any  misbehavior  of  the  parent,  and  there- 
fore a  child  is  equally  justifiable  in  defending  the  person  or 
maintaining  the  cause  or  suit  of  a  bad  parent  as  a  good  one, 
and  is  equally  compellable  [but  by  statute  only;  see  43  Eliz. 
c.  2.],  if  of  sufficient  ability,  to  maintain  and  provide  the 
a  wicked  and  unnatural  progenitor,  as  for  one  who  has 
shown  the  greatest  tenderness  and  parental  piety.^ 

II.  Illegitimate  children,  or  bastards. 

1.  Who  are  bastards.    A  bastard  by  our  English  laws  is 

5.  The    age    of    majority    is    21    in  Turball,  1  Kehle,  589;  State  v.  Clarke, 

this  country.     In  Illinois  women,  by  3  Harring.  557. 

statute,    become   of    age    at    18.     An  5a.  See   note,   supra. 

infant  reaches  his  majority  at  the  be-  6.  Unless   the  duty   is   imposed   by 

ginning  of  the  day  next  preceding  the  statute  a  child  is  under  no  legal  obli- 

21st  anniversary  of  his  birth.   Ewell's  gation   to   support   his   parents.     Tif- 

Lead.  Cases   (1st  Ed.),  1;  Herbert  v.  fany,  Dom.  Rel.,  311,  and  cases  cited. 


116  Of  Parent  and  Child.  [Book  I. 

one  that  is  not  only  begotten,  but  born  out  of  lawful  matri- 
mony." The  civil  and  canon  laws  do  not  allow  a  child  to 
remain  a  bastard  if  the  parents  afterwards  intermarry;  and 
herein  they  differ  most  materially  from  our  law,  which, 
though  not  so  strict  as  to  require  that  the  child  shall  be 
begotten,  y.et  makes  it  an  indispensable  condition,  to  make 
it  legitimate,  that  it  shall  be  horn  after  lawful  wedlock.* 
[455]  All  children  born  before  matrimony  are  bastards  by 
our  law;  and  so  it  is  of  all  children  born  so  long  after  the 
deatli  of  the  husband  that,  by  the  usual  course  of  gestation, 
they  could  not  be  begotten  by  him.  [456]  But  this  being 
a  matter  of  some  uncertainty,  the  law  is  not  exact  as  to  a 
few  days.^  And  this  gives  occasion  to  a  proceeding  at  com- 
mon law,  where  a  widow  is  suspected  to  feign  herself  with 
child  in  order  to  produce  a  suppositious  heir  to  the  estate. 
In  this  case  with  us  the  heir  presumptive  may  have  a  writ 
de  ventre  inspiciendo  to  examine  whether  she  be  with  child 
or  not,  and  if  she  be,  to  keep  her  under  proper  restraint  till 
delivered.  But  if  the  widow  be  upon  due  examination 
found  not  pregnant,  the  presumptive  heir  shall  be  admitted 
to  the  inheritance,  though  liable  to  lose  it  again  on  the  birth 
of  a  child  within  forty  weeks  from  the  death  of  a  husband. 
But  if  a  man  dies  and  his  widow  soon  after  marries  again, 
and  a  child  is  born  w^ithin  such  a  time  as  that  by  the  course 
of  nature  it  might  have  been  the  child  of  either  husband, 
in  this  case  he  is  said  to  be  more  than  ordinarily  legitimate, 
for  he  may  when  he  arrives  to  years  of  discretion  choose 
which  of  the  fathers  he  pleases.^    [457] 

As  bastards  may  be  born  before  the  coverture  or  marriage 
state  is  begun  or  after  it  is  determined,  so  also  children  born 
during  wedlock  may  in  some  circumstances  be  bastards. 

7.  See  2  Taylor's  Med.  Jur.  (2d  ject  of  legitimacy  is  considered  at 
Am.  Ed.),  241;  Ewell's  Med.  Jur.  (2d      length. 

Fd.),  181.  1.  It  is  "a  question  for  the  jury 

8.  See  R.  S.  111.,  ch.  39,  sec.  3;  to  determine  according  to  the  evi- 
Ewell's  Med.  Jur.  (2d  Ed.),  181.  dence  which  husband  was  most  likely 

9.  See,  generally,  Ewell's  Med.  Jur.  to  be  the  father."  1  Broom  &  Hadley 
(2d  Ed.),  181  et  seq.,  where  the  sub-  Com.,  561,  citing  Ck>.  Litt.  by  Harg., 

123b,  n.  1. 


Chap.  XVI.]  Of  Parent  and  Child.  117 

As  if  the  husband  be  out  of  the  kingdom  of  England,  or,  as 
the  law  somewhat  loosely  phrases  it,  extra  quatuor  marw,^ 
for  above  nine  months,  so  that  no  access  to  his  wife  can  be 
presumed,  her  issue  during  that  period  shall  be  bastards. 
But  generally  during  the  coverture  access  of  the  husband 
shall  be  presumed  unless  the  contrary  can  be  shown,  which 
is  such  a  negative  as  can  only  be  proved  by  showing  him  to 
be  elsewhere;  for  the  general  rule  is,  praesumittcr  pro  legiti- 
matione.^  In  a  divorce  a  mensa  et  tlioro,  if  the  wife  breeds 
children  they  are  bastards,  for  the  law  will  presume  the 
husband  and  wife  comfortable  to  the  sentence  of  separation 
unless  access  be  proved;  but  in  a  voluntary  separation  by 
agreement  the  law  will  suppose  access  unless  the  negative 
be  shown.  So  also  if  there  is  an  apparent  impossibility  of 
procreation  on  the  part  of  the  husband,  as  if  he  be  only 
eight  years  old,  or  the  like,  there  the  issue  of  the  wife  shall 
be  bastards.  Likewise,  in  case  of  divorce  in  the  spiritual 
court  a  vinculo  matrimonii,  all  the  issue  born  during  the 
coverture  are  bastards,  because  such  divorce  is  always  upon 
some  cause  that  rendered  the  marriage  unlawful  and  null 
from  the  beginning.    [458] 

2.  The  duty  of  parents  to  their  bastard  children  by  our 
law  is  principally  that  of  maintenance.  For  though  bast- 
ards are  not  looked  upon  as  children  to  any  civil  purposes, 
yet  the  ties  of  nature,  of  which  maintenance  is  one,  are  not 
so  easily  dissolved.  And  they  hold,  indeed,  as  to  many 
other  intentions:  as,  particularly,  that  a  man  shall  not 
marry  his  bastard  sister  or  daughter. 

When  a  woman  is  delivered,  or  declares  herself  with 
child,  of  a  bastard,  and  will  by  oath  before  a  justice  of  peace 
charge  any  person  as  having  got  her  with  child^  the  justice 
shall  cause  such  person  to  be  apprehended,  and  commit  him 
till  he  gives  security,  either  to  maintain  the  child,  or  appear 
at  the  next  quarter  sessions  to  dispute  and  try  the  fact. 
But  if  the  woman  dies,  or  is  married  before  delivery,  or 

2.  Beyond  the  four  seas.  This  is  legitimacy.  The  burden  of  proof  ia 
no  longer  law.  1  Broom  &  Hadley  with  him  who  alleges  the  illegitimacy. 
Com..   562.  See   1   Broom   &   Hadley   Com.,   562; 

3.  The  presumption  is  in  favor  of  Ewell'a  Med.  Jur,,  eh,  15. 


118  Of  Parent  and  Child.  [Book  I. 

miscarries,  or  proves  not  to  have  been  with  child,  the  person 
shall  be  discharged;  otherwise  the  sessions,  or  two  justices 
out  of  sessions,  upon  original  application  to  them,  may  take 
order  for  the  keeping  of  the  bastard,  by  charging  the 
mother  or  the  reputed  father  with  the  payment  of  money 
or  other  sustentation  for  that  purpose.  And  if  such  puta- 
tive father  or  lewd  mother  run  away  from  the  parish,  the 
overseers,  by  direction  of  two  justices,  may  seize  their  rents, 
goods,  and  chattels,  in  order  to  bring  up  the  said  bastard 
child." 

3.  I  proceed  next  to  the  rights  and  incapacities  which 
appertain  to  a  bastard.  [459]  The  rights  are  very  few, 
being  only  such  as  he  can  acquire,  for  he  can  inherit  nothing, 
being  looked  upon  as  the  son  of  nobody.^  Yet  he  may  gain 
a  surname  by  reputation,  though  he  has  none  by  inheritance. 
All  other  children  have  their  primary  settlement  in  their 
father 's  parish ;  but  a  bastard  in  the  parish  where  born,  for 
he  hath  no  father.  However,  in  case  of  fraud,  as  if  a  woman 
be  sent  either  by' order  of  justice,  or  comes  to  beg  as  a  va- 
grant, to  a  parish  Avliere  she  does  not  belong  to,  and  dro})s 
her  bastard  there,  the  bastard  shall,  in  the  first  case,  be 
settled  in  the  parish  from  whence  she  was  illegally  removed ; 
or,  in  the  latter  case,  in  the  mother's  own  parish,  if  the 
mother  be  apprehended  for  her  vagrancy.  Bastards  also 
born  in  any  licensed  hospital  for  pregnant  women  are 
settled  in  the  parishes  to  which  the  mothers  belong.  The 
incapacity  of  a  bastard  consists  principally  in  this,  that  he 
cannot  be  heir  to  any  one,  neither  can  he  have  heirs  but  of 
his  own  body;  for,  being  md litis  fiHus,  he  is  therefore  of  kin 
to  nobody,  and  has  no  ancestor  from  whom  any  inheritable 
blood  can  be  derived.®  A  bastard  may,  lastly,  be  made 
legitimate,  and  capable  of  inheriting,  by  the  transcendent 
power  of  an  act  of  parliament,  and  not  otherwise. 

4.  Consult  the  local  statutes  on  the  tis'  Ed.),  ch.  39,  If  2;  Miller  v.  Wil- 
Bubject  of  Bastards.  liams,   66  111.   91;    Stoltz  v.  Doering, 

5.  Consult  the  local  statutes  which  112  111.  234;   Elder  v.  Bales,  127  IlL 
in    some    states    have    modified    the  425;   1  N.  Y.  R.  St.  753. 
harshness  of  the  common  law  on  this  6,  See  note  2,  suprck. 

Bubject.    See  R.  S.  111.  (Starr  &  Cur-  -^-  - 


Chap.  XVII.]         Of  Guardian  and  Ward.        ,  11  J) 


CHAPTER  XVII. 

OF  GUARDIAN  AND  WARD. 

A  guardian  is  only  a  temporary  parent,  that  is,  for  so 
long  time  as  the  ward  is  an  infant,  or  under  age.    [460] 

1.  The  guardian  with  us  performs  the  effice  both  of  the 
tutor  and  curator  of  the  Roman  laws;  the  former  of  which 
had  the  charge  of  the  maintenance  and  education  of  the 
minor,  the  latter  the  care  of  his  fortune,  or,  according  to 
the  language  of  the  court  of  chancery,  the  Uitor  was  the 
committee  of  the  person,  the  curator  the  committee  of  the 
estate.  But  this  office  was  frequently  united  in  the  civil 
law,  as  it  is  always  iii  our  law  with  regard  to  minors,  though 
as  to  lunatics  and  idiots  it  is  commonly  kept  distinct. 

Of  the  several  species  of  guardians,  the  first  are  guard- 
ians by  nature:  viz.,  the  father,  and  in  some  cases  the  mother 
of  the  child.  For  if  an  estate  be  left  to  an  infant,  the  father 
is  by  common  law  the  guardian,  and  must  account  to  his 
child  for  the  profits.  [461]  And  with  regard  to  daughters, 
it  seems  by  construction  of  the  statute  4  and  5  Ph.  and  Mar. 
c.  8,  that  the  father  might  by  deed  or  will  assign  a  guardian 
to  any  woman-child  under  the  age  of  sixteen;  and,  if  none 
be  so  assigned,  the  mother  shall  in  this  case  be  guardian. 
There  are  also  guardians  for  nurture,  which  are,  of  course, 
the  father  or  mother,  till  the  infant  attains  the  age  of  four- 
teen years ;  and  in  default  of  father  or  mother,  the  ordinary 
usually  assigns  some  discreet  person  to  take  care  of  the 
infant's  personal  estate,  and  to  provide  for  his  maintenance 
and  education.'    Next  are  guardians  in  socage,  w^ho  are  also 

7.  The   father   and   in   case   of   his  the  infant's  property.  .  Where  the  In- 

death  the   mother,  and,  if  both  par-  fant  has  property  a  guardian  should 

eiits  are  dead,  then  the  next  of  kin  be  appointed  according  to  the  provi- 

are  the  natural  guardians  of  the  in-  sions  of  the  local  statutes  by  which 

fant  and  entitled  to  his  custody  dur-  this   subject   is   very   generally  regu- 

ing  infancy,   if  there  is  no  sufficient  lated  in  the  several  states.     See  Tif- 

rtason  to  the  contrary.    He  has,  how-  fany,  Dom.  Rel.,  316-318. 
ever,  p,s  such  guardian  no  power  over 


120  Op  Guardian  and  Ward.  [Book  I. 

called  guardians  hy  the  common  law.  These  take  place  only 
when  the  minor  is  entitled  to  some  estate  in  lands,  and  tlien 
by  the  common  law  the  guardianship  devolves  upon  his 
next  of  kin  to  whom  the  inheritance  cannot  possibly  de- 
scend. These  guardians  in  socage,  like  those  for  nurture, 
continue  only  till  the  minor  is  fourteen  years  of  age;  for 
then,  in  both  cases,  he  is  presumed  to  have  discretion  so 
far  as  to  choose  his  own  guardian.  [462]  This  he  may  do, 
unless  one  be  appointed  by  the  father,  by  virtue  of  the 
statute  12  Car.  II.  c.  24,  which,  considering  the  imbecility 
of  judgment  in  children  of  the  age  of  fourteen,  and  the 
abolition  of  guardianship  in  chivalry  (which  lasted  till  the 
age  of  twenty-one,  and  of  which  we  shall  speak  hereafter), 
enacts  that  any  father,  under  age  or  of  full  age,  may  by 
deed  or  will  dispose  of  the  custody  of  his  child,  either  born 
or  unborn,  to  any  person,  except  a  popish  recusant,  either  in 
possession  or  reversion,  till  such  child  attains  the  age  of  one 
and  twenty  years.  These  are  called  guardians  by  statute, 
or  testamentary  guardians.^ 

The  power  and  reciprocal  duty  of  a  guardian  and  ward 
are  the  same,  pro  tempore,  as  that  of  a  father  and  child; 
and  therefore  I  shall  not  repeat  them,  but  shall  only  add 
that  the  guardian,  when  the  ward  comes  of  age,  is  bound  to 
give  him  an  account  of  all  that  he  has  transacted  on  his 
behalf,  and  must  answer  for  all  losses  by  his  wilful  default 
or  negligence.  [463]  In  order,  therefore,  to  prevent  dis- 
agreeable contests  with  young  gentlemen,  it  has  become  a 
practice  for  many  guardians,  of  large  estates  especially,  to 
indemnify  themselves  by  applying  to  the  Court  of  Chancery, 
acting  under  its  direction,  and  accounting  annually  before 
the  officers. of  that  court.  For  the  Lord  Chancellor  is,  by 
right  derived  from  the  crown,  the  general  and  supreme 
guardian  of  all  infants,  as  well  as  idiots  and  lunatics.  In 
case,  therefore,  any  guardian  abuses  his  trust,  the  court  will 
check  and  punish  him;  nay,  sometimes  will  proceed  to  the 
removal  of  him,  and  appoint  another  in  his  stead.* 

8.  The    provisions    of    this    statute      statutes.      See    Tiflfany,    Dom.    Rel., 
have  been  substantially  re-enacted  in      318. 
many  of  the  states.   Consult  the  local         9.  In  the  United  States  jurisdiction 


Ghap.  XVII.]         Of  Guardian  and  Ward.  "         121 

2.  The  ages  of  male  and  female  are  different  for  different 
purposes.  A  male  at  twelve  years  old  may  take  the  oath 
of  allegiance;  at  fourteen  is  at  years  of  discretion,  and  there- 
fore may  consent  or  disagree  to  marriage,  may  choose  his 
guardian,  and,  if  his  discretion  be  actually  proved,  may 
make  his  testament  of  his  personal  estate;  at  seventeen  may 
be  an  executor;  and  at  ttventy-one  is  at  his  own  disposal, 
and  may  alien  his  lands,  goods,  and  chattels.  A  female 
also  at  seven  years  of  age  may  be  betrothed  or  given  in 
marriage;  at  nine  is  entitled  to  dower;  at  tioelve  is  at  years 
of  maturity,  and  therefore  may  consent  or  diagree  to  mar- 
riage, and,  if  proved  to  have  sufficient  discretion,  may  be- 
queath her  personal  estate;  at  fourteen  is  at  years  of  legal 
discretion,  and  may  choose  a  guardian;  at  seventeen  may  be 
executrix ;  and  at  tiventy-one  may  dispose  of  herself  and  her 
lands.  So  that  full  age  in  male  or  female  is  twenty-one 
years,  which  age  is  completed  on  the  day  preceding  the 
anniversary  of  a  person's  birth,  who  till  that  time  is  an 
infant,  and  so  styled  in  law. 

3.  Infants  have  various  privileges  and  various  disabili- 
ties; but  their  very  disabilities  are  privileges,  in  order  to 
secure  them  from  hurting  themselves  by  their  own  improvi- 
dent acts.  An  infant  cannot  be  sued  but  under  the  protec- 
tion, and  joining  the  name  of  his  guardian,  for  he  is  to  de- 
fend him  against  all  attacks  as  Avell  by  law  as  otherwise; 
but  he  may  sue  either  by  his  guardian  or  prochein  amy^^ 
his  next  friend  who  is  not  his  guardian.  This  prochein  amy 
may  be  any  person  who  will  undertake  the  infant's  cause; 
and  it  frequently  happens  that  an  infant,  by  his  prochein 
amy,  institutes  a  suit  in  equity  against  a  fraudulent  guar- 
dian.^    In  criminal  cases,  an  infant  of  the  age  of  fourteen 

over  guardianship  is  usually  by  stat-  9a.  Next  friend, 

ute  vested  in  probate,  surrogate,  or-  1.  It  is  well  settled  that  an  infant 

phans',  or  county  courts.     Courts  oi  defendant  cannot  appear  in  person  or 

chancery,  however,  in  the  absence  of  by    attorney;    but    must    appear    by 

prohibitory  statutory  provisions,  have  guardian  {ad  litem  for  the  particular 

jurisdiction  to  appoint  guardians  over  case,  if  he  has  no  general  guardian)  ; 

the  persons  and  property  of  infants,  and  the  giiardian  must  be  a  real  and 

Tiffany,  Dom.  Rel.,  320.  not  a  fictitious  person,  such  as  "  John 


122  Of  Guardian  and  Ward.  [Book  I. 

years  may  be  capitally  punished  for  any  capital  offence, 
but  under  the  age  of  seven  he  cannot.  The  period  between 
seveii  and  fourteen  is  subject  to  much  uncertainty,  for  the 
infant  shall,  generally  speaking,  be  judged  prima  facie  inno- 
cent; yet  if  he  was  doli  capax,  and  could  discern  between 
good  and  evil  at  the  time  of  the  offence  committed,  he  may 
be  convicted  and  undergo  judgment  and  execution  of  death, 
though  he  hath  not  attained  to  years  of  puberty  or  dis- 
cretion.2 

With  regard  to  estates  and  civil  property,  an  infant  hath 
many  privileges,  which  will  be  better  understood  when  we 
come  to  treat  more  particularly  of  those  matters;  but  this 
may  be  said  in  general,  that  an  infant  shall  lose  nothing  by 
non-claim,  or  neglect  of  demanding  his  right ;  nor  shall  any 
other  laches  or  negligence  be  imputed  to  an  infant,  except 
in  some  very  particular  cases.    [465] 

It  is  generally  true  that  an  infant  can  neither  aliene  his 
lands,  nor  do  any  legal  act,  nor  make  a  deed,  nor  indeed 
any  manner  of  contract  that  will  bind  him.  But  still  to  all 
these  rules  there  are  some  exceptions,  part  of  which  were 
just  now  mentioned  in  reckoning  up  the  different  capacities 
which  they  assume  at  different  ages;  and  there  are  others, 
a  few  of  which  it  may  not  be  improper  to  recite.  And  first, 
it  is  true  that  infants  cannot  aliene  their  estates ;  but  infant 
trustees,  or  mortgagees,  are  enabled  to  convey,  under  the 
direction  of  the  Court  of  Chancery  or  Exchequer,  or  other 
courts  of  equity,  the  estates  they  hold  in  trust  or  mortgage, 
to  such  person  as  the  court  shall  appoint.  Also  it  is  gener- 
ment.  [466]  It  is,  further,  generally  true  that  an  infant 
who  has  had  an  advowson  may  present  to  the  benefice  when 
it  becomes  void.  An  infant  may  also  purchase  lands,  but 
his  purchase  is  incomplete;  for  when  he  comes  to  age  he 
may  either  agree  or  disagree  to  it,  as  he  thinks  prudent  or 

Doe."   But  after  the  appointment  of  a  against  them,  fully  considered  in  the 

guardian,  if  an  attorney  appears  and  notes  to  Mills  v.  Dennis,  3  John.  Ch. 

pleads,  it  will  be  presumed  that  he  is  367;    s.  c.,   Ewell's   Lead.   Cases    (Ist 

properly  authorized  so  to  do.    Seethe  Ed.),    229-238;    Tiffany,    Dom.    Rel., 

subject  of  appearance  by  infants  and  323. 

tlie  effect  of  judgments  and  decrees  2.  See  post,  Criminal  Law. 


Chap.  XVII.]  Of  Guardian  ai«^d  Ward. 


12' 


proper,  without  alleging  any  reason;  and  so  may  his  heirs 
after  him  if  he  dies  without  having  completed  his  agree- 
ment. [466]  It  is,  further,  generally  true  that  an  infant 
under  twenty-one  can  make  no  deed  but  what  is  afterwards 
voidable;  yet  in  some  cases  he  may  bind  himself  apprentice 
by  deed  indented,  or  indentures,  for  seven  years,  and  ho 
may  by  deed  or  will  appoint  a  guardian  to  his  children,  if 
he  has  any.  Lastly,  it  is  generally  true  that  an  infant  can 
make  no  other  contract  that  will  bind  him;  yet  he  may 
bind  himself  to  pay  for  his  necessary  meat,  drink,  apparel, 
physic,  and  such  other  necessaries,  and  likewise  for  his 
good  teaching  and  instruction,  whereby  he  may  profit  him- 
self afterwards.^ 


3.  As  to  the  liability  of  infants  on 
their  contracts  in  England,  see  37  & 
38  Vict.,  ch.  62.  In  this  country  there 
has  been  very  little  legislation  on  the 
subject,  which  therefore  remains  very 
much  as  at  common  law,  though  in- 
volved in  great  conflict  of  authority. 
Considering  the  conflict  and  the  num- 
ber of  cases,  about  all  that  can  be 
done  at  this  point  is  to  state  that 
the  general  tendency  of  authority, 
except  as  below  stated,  is  to  hold  all 
an  infant's  contracts  voidable  and  not 
void,  though  in  some  states  powers 
of  attorney,  appointments  of  agents, 
contracts  of  suretyship,  and  bonds 
with   penalties  are  void. 

Certain  contracts  are  valid  and 
binding  upon  the  infant.  Such  are 
contracts  created  or  authorized  by 
law,  implied  (not  express)  contracts 
for  necessaries  and  contracts  to  do 
what  the  infant  was  legally  bound 
and  compellable  to  do.  See,  gener- 
ally, Tiffany,  Dom.  Rel.,  386-425; 
Swell's  Lead.  Cases  {1st  Ed.),  3-188. 
and  notes. 

The  voidable  (and  not  the  void) 
executory  contracts  of  an  infant  may 


be  ratified  by  him  after  reaching  ma- 
jority, but,  until  so  ratified,  do  not 
bind  him.  Executed  voidable  con- 
tracts on  the  other  hand  are  binding 
upon  the  infant  till  disaffirmed  by 
him.  TiflFany,  Dom.  Rel.,  400-402,  and 
notes. 

The  voidable  executory  contracts  of 
an  infant  may  be  avoided  by  him  dur- 
ing infancy  as  well  as  afterwards.  So 
too  all  contracts  respecting  property 
which  are  executed  by  delivery  of 
some  article  on  payment  of  money 
may  be  rescinded  by  the  minor  either 
before  or  after  majority;  but  convey- 
ances of  real  property  in  fee,  for  life, 
or  for  years,  cannot  be  avoided  till 
the  infant  reaches  full  age.  See,  gen- 
erally, Tiffany.  Dom.  Rel.,  403  et  seq.; 
Ewell's  Lead.  Cases  (1st  Ed.),  92,  96, 
notes;  Reeve's  Dom.  Rel.,  *254. 

An  infant  is  liable  upon  his  pure 
torts  not  growing  out  of  contract. 
Homer  v.  Thwing,  3  Pick.  492; 
Ewell's  Lead.  Cases  (1st  Ed.),  188, 
206,  note. 

As  to  criminal  liability,  see  post, 
book  4. 


124  Or  CoEPOEATioNs.  [Book  I. 


CHAPTER  XVIII. 

OF  CORPORATIONS. 

As  all  personal  rights  die  with  the  person,  and  as  the 
necessary  forms  of  investing  a  series  of  individuals,  one 
after  another,  with  the  same  identical  rights,  would  be  very- 
inconvenient  if  not  impracticable,  it  has  been  found  neces- 
sary, when  it  is  for  the  advantage  of  the  public  to  have  any 
particular  rights  kept  on  foot  and  continued,  to  constitute 
aitificial  persons,  who  may  maintain  a  perpetual  succession, 
and  enjoy  a  kind  of  legal  immortality.    [467] 

These  artificial  persons  are  called  bodies  politic,  bodies 
corporate  (corpora  corporata),  or  corporations.  When  they 
[the  individuals  composing  a  corporations]  are  consoli- 
dated and  united  into  a  corporation,  they  and  their  succes- 
sors are  then  considered  as  one  person  in  law.  [468]  As 
one  person  they  have  one  will,  which  is  collected  from  the 
sense  of  the  majority  of  the  individuals.  This  one  will  may 
establish  rules  and  orders  for  the  regulation  of  the  whole, 
which  are  a  sort  of  municipal  laws  of  this  little  republic,  or 
rules  and  statutes  may  be  prescribed  to  it  at  its  creation, 
which  are  then  in  the  place  of  natural  laws.  The  privileges 
and  immunities,  the  estates  and  possessions  of  the  corpora- 
tion, when  once  vested  in  them  will  be  forever  vested  with- 
out any  new  conveyance  to  new  successions;  for  all  the  in- 
dividual members  that  have  existed  from  the  foundation  to 
the  present  time,  or  that  shall  ever  hereafter  exist,  are  but 
one  person  in  law,  —  a  person  that  never  dies:  in  like  man- 
ner as  the  River  Thames  is  still  the  same  river,  though  the 
parts  which  compose  it  are  changing  every  instant. 

The  first  division  of  corporation  is  into  aggregate  and 
sole^  [469]  Corporations  aggregate  consist  of  many  persons 
united  together  into  one  society,  and  are  kept  up  by  a  per- 

4.  See  generally  as  to  the  classifi- 
cation of  corporations,  Clark  on  Corp. 
(2d  Ed.),  23. 


Chap.  XVIIL]  Of  Cokpokations.  125 

petual  succession  of  members  so  as  to  continue  forever. 
Corporations  sole  consist  of  one  person  only  and  his  succes- 
sors, in  some  particular  station,  who  are  incorporated  by 
law  in  order  to  give  them  some  legal  capacities  and  advan- 
tages, particularly  that  of  perpetuity,  which  in  their  natural 
persons  they  could  not  have  had.  In  this  sense  the  king  is 
a  sole  corporation;  so  is  a  bishop;  so  are  some  deans  and 
prebendaries,  distinct  from  their  several  chapters;  and  so 
is  every  parson  and  vicar.^ 

Another  division  of  incorporations,  either  sole  or  aggre- 
gate, is  into  ecclesiastical  and  lay.  [470]  Ecclesiastical 
corporations  are  where  the  members  that  compose  them  are 
entirely  spiritual  persons,  such  as  bishops,  certain  deans 
and  prebendaries,  all  archdeacons,  parsons,  and  vicars, 
which  are  sole  corporations,  deans  and  chapters  at  present, 
and  formerly  prior  and  convent,  abbot  and  monks,  and  the 
like  bodies  aggregate.  These  are  erected  for  the  further- 
ance of  religion  and  perpetuating  the  rights  of  the  church." 
Lay  corporations  are  of  two  sorts,  cifil  and  eleemosynary. 
The  civil  are  such  as  are  erected  for  a  variety  of  temporal 
purposes.  The  king,  for  instance,  is  made  a  corporation  to 
prevent  in  general  the  possibility  of  an  interregnum  or 
vacancy  of  the  throne,  and  to  preserve  the  possessions  of  the 
crown  entire.  Other  lay  corporations  are  erected  for  the 
good  government  of  a  town  or  particular  district  [471] 
[with  us  called  municipal  corporations] ;"  some  for  the  ad- 

5.  Roman  Catholic  bishops  hold  the  differ  from  that  adopted  in  the  case 
title  to  church  property  in  some  of  of  corporations  for  pecuniary  profit, 
the  states  as  corporations  sole;  there  but  they  are  not  ecclesiastical  corpo- 
may  be  other  instances  but  they  are  rations  in  the  sense  of  the  text.  See 
very  few.  See  Brunswick  v.  Dunning,  R.  S.  111.,  ch.  32  (Starr  &  Curtis' 
7  Mass.  447;  Westcott  v.  Fargo,  61  Ed.),  ch.  32,  sec.  35,  and  notes;  Rob- 
Jf.  Y.  542;  Overseers  of  Poor  of  Bos-  ertson  v.  Bullions,  11  N.  Y.  243. 
ton  V.  S«ars,  22  Pick.  122;  Clark  on  7.  The  literature  on  the  subject  of 
Corporations   (2d  Ed.),  24.  municipal  corporations  is  voluminous. 

6.  In  the  United  States  religious  Dillon  on  Municipal  Corporations  is 
societies  and  eleemosynary  corpora-  in  its  5th  (1911)  edition  and  com- 
tions  are,  as  a  rule,  incorporated  un-  prises  5  volumes;  Abbott's  work  on 
der  general  laws  as  lay  corporations,  the  same  subject  (1905)  comprises  3 
The    method    of    incorporation    may  volumes,    and    McQuillin'a     (1911)     6 


126 


Of  Corporations. 


[Book  I. 


vancement  and  regulation  of  manufactures  and  commerce, 
and  some  for  the  better  carrying  on  of  divers  special  pur- 
poses, as  churchwardens,  for  conservation  of  the  goods  of 
the  parish,  the  college  of  physicians  and  company  of  sur- 
geons in  London,  for  the  improvement  of  the  medical 
science,  &c.  The  eleemosynary  sort  are  such  as  are  consti- 
tuted for  the  perpetual  distribution  of  the  free  alms  or 
bounty  of  the  founder  of  them  to  such  persons  as  he  has 
directed.  Of  this  kind  are  all  hospitals  for  the  maintenance 
of  the  poor,  sick,  and  impotent,  &c.  And  all  these  eleemosy- 
nary corporations  are,  strictly  speaking,  lay  and  not  ecclesi- 
astical, even  though  composed  of  ecclesiastical  persons,  and 


volumes.  Others  might  be  referred 
to.  See  Bender's  Law  Book  Cata- 
logue, 1914,  titles  Municipal  Bonds; 
Municipal  Law,  etc. 

The  literature  upon  the  general  law 
of  corporations  is  even  more  volumin- 
ous. See  Bender's  Law  Catalogue, 
titles  Corporations;  Foreign  Corpora- 
tions, etc. 

Chief  Justice  Marshall  thus  de- 
scribes a  corporation :  "  A  corpora- 
tion is  an  artificial  being,  invisible, 
intangible,  and  existing  only  in  con- 
templation of  law.  Being  the  mere 
creature  of  the  law,  it  possesses  only 
those  properties  which  the  charter  of 
its  c.-eation  confers  upon  it,  either 
expressly  or  as  incidental  to  its  very 
existence.  These  are  such  as  are  sup- 
posed to  be  best  calculated  to  effect 
the  object  for  which  it  is  created. 
Among  the  most  important  are  I'm- 
moriality,  and,  if  the  expression  may 
be  allowed,  individuality — properties 
by  which  a  perpetual  succession  of 
many  persons  are  considered  as  the 
same,  and  may  act  as  a  single  indi- 
vidual. They  enable  a  corporation  to 
manage  its  own  affairs  and  to  hold 
property   without   the   perplexing   in- 


tricacy, the  hazardous  and  endless 
necessity  of  perpetual  conveyances 
for  the  purpose  of  transmitting  it 
from  hand  to  hand.  It  is  chiefly  for 
tlie  purpose  of  clothing  bodies  of  men 
in  succession  with  these  qualities  and 
capacities,  that  corporations  were 
invented  and  are  in  us.'.  By  these 
means  a  perpetual  succession  of  indi- 
viduals are  capable  of  acting  for  the 
promotion  of  the  particular  object 
like  one  immortal  being."  Dartmouth 
College  V.  Woodward,  4  Wheat.  636. 
"  Municipal  corporations  are  bodies 
politic  and  corporate  of  the  general 
character  above  described,  established 
by  law,  to  share  in  the  civil  govern- 
ment of  the  country,  but  chiefly  to 
regulate  and  administer  the  local  or 
internal  affairs  of  the  city,  town  or 
district  which  is  incorporated.  Like 
other  corporations,  they  must  be  cre- 
ated by  statute.  They  possess  no 
powers  or  faculties  not  conferred  upo« 
them  either  expressly  or  by  fair  im- 
plications by  the  law  which  creates 
them  or  other  statutes  applicable  to 
them."  1  Dillon's  Mun,  Corp.  (2d 
Ed.),  ch.  2,  sec.  9a,  9b. 


Cjiap.  XVIII.]  Of  Corporations.  127 

although  they  in  some  things  partake  of  the  nature,  privi- 
leges, and  restrictions  of  ecclesiastical  bodies. 

Let  us  next  proceed  to  consider,  1.  How  corporations  in 
general  may  be  created  [472] ;  2.  What  are  their  powers, 
capacities,  and  incapacities;  3.  How  corporations  are 
visited;  and  4.  How  they  may  be  dissolved. 

I.  With  us  in  England  the  king's  consent  is  absolutely 
necessary  to  the  erection  of  any  corporation,  either  im- 
pliedly or  expressly  given.  The  king's  implied  consent  is 
to  be  found  in  corporations  which  exist  by  force  of  the  com- 
mon law,  to  which  our  former  kings  are  supposed  to  have 
given  their  concurrence.  Of  this  sort  are  the  king  himself, 
all  bishops,  parsons,  vicars,  churchwarders,  and  some 
others.  Another  method  of  implication,  whereby  the  king 's 
consent  is  presumed,  is  as  to  all  corporations  by  prescrip- 
tion,* such  as  the  city  of  London  and  many  others  which 
have  existed  as  corporations,  time  whereof  the  memory  of 
man  runneth  not  to  the  contrary,  and  therefore  are  looked 
upon  in  law  to  be  well  created.  [473]  For  though  the  mem- 
bers thereof  can  show  no  legal  charter  of  incorporation,  yet 
in  cases  of  such  high  antiquity  the  law  presumes  there  once 
was  one,  and  that  by  the  variety  of  accidents  which  a  length 
of  time  may  produce  the  charter  is  lost  or  destroyed.  The 
methods  by  which  the  king's  consent  is  expressly  given  are 
either  by  act  of  parliament  or  charter.  By  act  of  parlia- 
ment, of  wlicili  the  royal  assent  is  a  necessary  ingredient, 
corporations  may  undoubtedly  be  created. 

All  the  other  methods,  therefore,  whereby  corporations 
exist,  by  common  law,  by  prescription,  and  by  act  of  parlia- 
ment, are  for  the  most  part  reducible  to  this  of  the  king's 
letters  patent,  or  charter  of  incorporation.  The  king 's  crea- 
tion may  be  performed  by  the  words  "^  creamiis,  erigimus, 
fundamus,  incorporamtis/'^  or  the  like.     Nay,  it  is  held  that 

8,  This  doctrine  has  been  frequently  on  Corp.    t2d  Ed.),  31,  6  Conn.  293. 

applied   in   the   United   States   as   to  See,  also,  Robie  v.  Sedgwick,  35  Barb, 

municipal    corporations.      Jamison   v.  319;  Chittenden  v.  Chittenden,  1  Am. 

I'eople,    16   111.   257;    Clark   on   Corp.  Law  Eep.   538. 

(2d   Ed.),   31.     It  has  also   been  ap-  9.  We  create,  erect,  found,  incorpo- 

plied  to  private  corporations.     Clark  rate. 


128  Of  Corporations.  [Book  L 

if  the  king  grants  to  a  set  of  men  to  have  gildam  mercato- 
riam  (a  mercantile  meeting  or  assembly)  this  is  alone  suffi- 
cient to  incorporate  and  establish  them  forever.    [474] 

The  parliament,  by  its  absolute  and  transcendent  author- 
ity, may  perform  this  or  any  other  act  whatsoever.^ 

The  king,  it  is  said,  may  grant  to  a  subject  the  power  of 
erecting  corporations,  though  the  contrary  was  formerly 
held :  that  is,  he  may  permit  the  subject  to  name  the  persons 
and  powers  of  the  corporation  at  his  pleasure.  But  it  is 
really  the  king  that  erects,  and  the  subject  is  but  the  instru- 
ment; for  though  none  but  the  king  can  make  a  corporation, 
yet  qui  facit  per  alium,  facit  per  se.^ 

AVhen  a  corporation  is  erected,  a  name  must  be  given  to 
it;  and  by  that  name  alone  it  must  sue  and  be  sued  and  do 
all  legal  acts,  though  a  very  minute  variation  therein  is  not 
material.  [475]  Such  name  is  the  very  being  of  its  consti- 
tution, and,  though  it  is  the  will  of  the  king  that  erects  the 
corporation,  yet  the  name  is  the  knot  of  its  combination, 
without  which  it  could  not  perform  its  corporate  functions.'* 

II.  After  a  corporation  is  so  formed  and  named  it  acquires 

1.  Corporations,  of  whatever  sort,  porations  organized  under  or  regu- 
arc  with  us  almost  entirely  created  lated  by  statute,  and  possessing  prac- 
by  statute,  either  special  or  general,  tically  all  the  attributes  of  corpora- 
though  usually,  and  in  some  states  tions  except  that  of  having  a  common 
by  constitutional  provision,  only  by  seal.  In  Westcott  v.  Fargo,  61  N.  Y. 
general  law,  private  or  special  laws  542,  the  president  or  treasurer  of  such 
being  prohibited  by  the  constitution,  an  association  was  regarded  for  the 
These  general  laws  prescribe  the  pur-  purposes  of  an  action  against  the  com- 
poses for  which  and  the  methods  by  pany,  substantially  as  a  corporation 
which  incorporation  may  be  effected,  sole.  For  details  as  to  these  asso- 
As  they  differ  in  the  several  states,  ciations,  see  2  Lindley  on  Part. 
the  local  statutes  should  be  consulted.  (Ewell's  Ed.),  ch.  5,  p.  758  et  seq. 

Besides    corporations,    we    have    in  2.  He   who   acts   by    another,    acts 

this  country  unincorporated  so-called  himself.    Neither  the  president  of  the 

joint    stock    companies,    which,    as    a  United    States   nor   a   governor   of   a 

rule,   are   merely  copartnerships   and  state  has  with  us  the  power  to  create 

subject  to  all  the  rules  governing  that  a  corporation. 

branch  of  the  law.     See  2  Lindley  on  3.  See,  generally,   Clark    on    Corp. 

Tart.  (Ewell's  Ed.),  ch.  5,  p.  758.  (2d   Ed.),    83.     Sometimes   these   are 

We    have   also,    principally    in    the  statutory  restrictions  as  to  the  name, 

state  of  New  York,  joint  stock  cor-  Id. 


Chap.  XVIII.]  Of  Corporatioi^s.  123 

many  powers,  rights,  capacities,  and  incapacities,  wliich  we 
are  next  to  consider.  Some  of  these  are  necessarily  and  in- 
separably incident  to  every  corporation,  which  incidents, 
as  soon  as  a  corporation  is  duly  erected,  are  tacitly  annexed 
of  course.  As,  1.  To  have  perpetual  succession.  This  is 
the  very  end  of  its  incorporation,  for  there  cannot  be  a  suc- 
cession forever  without  an  incorporation,  and  therefore  all 
aggregate  corporations  have  a  power  necessarily  implied  of 
electing  members  in  the  room  of  such  as  go  off.*  2.  To  sue 
or  be  sued,  implead  or  be  impleaded,  grant  or  receive  by  its 
corporate  name,  and  do  all  other  acts  as  natural  persons 
may.^  3.  To  purchase  lands  and  hold  them  for  the  benefit 
of  themselves  and  their  successors,  which  two  are  conse- 
quential to  the  former.^  4.  To  have  a  common  seal."  For 
a  corporation,  being  an  invisible  body,  cannot  manifest  its 
intentions  by  any  personal  act  or  oral  discourse ;  it  therefore 
acts  and  speaks  only  by  its  common  seal.  [Seal  not  neces- 
sary in  the  United  States  as  to  most  acts.]  5.  To  make 
by-laws*  or  private  statutes  for  the  better  government  of 
the  corporation,  which  are  binding  upon  themselves,  unless 
contrary  to  the  laws  of  the  land  [or  unreasonable] ,  and  then 
they  are  void.  These  five  powers  are  inseparably  incident 
to  every  corporation,  at  least  to  every  corporation  af/gre- 
gate;  for  two  of  them,  though  they  may  be  practised,  yet 
are  very  unnecessary  to  a  corporation  sole,  viz.,  to  have  a 
corporate  seal  to  testify  his  sole  assent,  and  to  make  statutes 
for  the  regulation  of  his  own  conduct. 

There  are  also  certain  privileges  and  disabilities  that 
attend  an  aggregate  corporation,  and  are  not  applicable  to 
such  as  are  sole,  the  reason  of  them  ceasing,  and  of  course 
the  law.  It  must  always  appear  by  attorney.  It  can  neither 
maintain  or  be  made  defendant  to  an  action  of  battery,  or 
such  like  personal  injuries,  for  a  corporation  can  neither 

4.  See  Clark  on  Corp.  (2d  Ed.),  11,  6.  Clark  of  Corp.  (2d  Ed.),  14.   Sea 

13.     Private    corporations    are    com-  as  to  acts  ultra  vires,  Id.,  ch.  6. 
monly  limited  in  duration  by  the  stat-  6.  Id.,  17. 

ute  creating  them  to  a  certain  num-         7.  Id.,  17. 

ber  of  yeara.    Id.,  note.  .    8.  Id.,  17.  . 

9  ; 


130  Of  Cobpoeations.  [Book  I. 

beat  nor  be  beaten  in  its  body  politic.®  A  corporation  can- 
not commit  treason,  or  felony,  or  other  crime,  in  its  corpor- 
ate capacity,  though  its  members  may  in  their  distinct  in- 
dividual capacities.^  Neither  is  it  capable  of  suffering  a 
traitor's  or  felon's  punishment,  for  it  is  not  liable  to  cor- 
poral penalties,  nor  to  attainder,  forfeiture,  or  corruption 
of  blood.  [477]  It  cannot  be  executor  or  administrator, 
or  perform  any  personal  duties,  for  it  cannot  take  an  oath 
for  the  due  execution  of  the  office.^  It  cannot  be  seised  of 
lands  to  the  use  of  another,  for  such  kind  of  confidence  is 
foreign  to  the  end  of  its  institution.^  Neither  can  it  be 
committed  to  prison,  for,  its  existence  being  ideal,  no  man 
can  apprehend  or  arrest  it. 

There  are  also  other  incidents  and  powers  which  belong 
to  some  sort  of  corporations  and  not  to  others.  An  aggre- 
gate corporation  may  take  goods  and  chattels  for  the  benefit 
of  themselves  and  their  successors,  but  a  sole  corporation 
cannot.^  In  ecclesiastical  and  eleemosynary  foundations 
the  king  or  the  founder  may  give  them  rules,  laws,  statutes, 
and  ordinances,  which  they  are  bound  to  observe;  but  cor- 
porations merely  lay,  constituted  for  civil  purposes,  are 
subject  to  no  particular  statutes,  but  to  the  common  law 
and  to  their  own  by-laws  not  contrary  to  the  laws  of  the 

9.  '"A  private  corporation   is  liable  nuisance.     Id.   198  and  cases  cited  in 

for    the    torts    of    its    servants    and  notes. 

agents  committed  in  the  course  of  2.  Contra,  if  so  autliorized  by  its 
their  employment  to  the  same  extent  charter.  Id.  123  and  cases  cited, 
as  a  natural  person  would  be,  and  it  3.  When  authorized  to  take  real 
may  be  liable  for,  wrongs  involving  a  and  personal  property,  it  may  hold 
mental  element,  as  malicious  wrongs,  the  same  in  trust;  if  the  trust  is  re- 
fraud,  etc."  Clark  on  Corp.  (2d  Ed.),  pugnant  to  or  inconsistent  with  the 
193  €t  seq.,  where  the  cases  are  fully  purposes  of  the  corporation,  it  can- 
collected,  not  be  compelled  to  execute  the  trust; 

1.  While  a  corporation  cannot  com-  but  the  court  will  appoint  a  new  trus- 

mit  a  crime  involving  a  mental  opera-  tee    to    effectuate    a    trust    otherwise 

tion  or  personal  violence,  it  may  be  unobjectionable.      Id.    123,    124    and 

criminally  liable  for  the  nonperform-  cases  cited. 

ance  of  a  duty  imposed  on  it  by  law  4.  Clark  on  Corp.    (2d  Ed.),  24;   2 

and  in  most  states  for  some  acts  of  Kent  Com.,  273,  274. 
misfeasance,    such   as    maintaining    a 


Chap.  XVIII.]  Of  Corporations.  131 

realm.^  [478]  Aggregate  corporations,  also,  that  have  by 
their  constitutions  a  head,  as  a  dean,  warden,  master,  or 
the  like,  cannot  do  any  acts  during  the  vacancy  of  the  head- 
ship, except  only  appointing  another;  neither  are  they  then 
capable  of  receiving  a  grant,  for  such  corporation  is  incom- 
plete without  a  head.  But  there  may  be  a  corporation 
aggregate  constituted  without  a  head.  In  aggregate  cor- 
porations, also,  the  act  of  the  major  part  is  esteemed  the 
act  of  the  whole.  With  us  aiiy  majority  is  sufficient  to  de- 
termine the  act  of  the  whole  body.^ 

We  before  observed  that  it  was  incident  to  every  corpora- 
tion to  have  a  capacity  to  purchase  lands  for  themselves  and 
successors,  and  this  is  regularly  true  at  the  common  law. 
[479]  But  they  are  excepted  out  of  the  statute  of  wills,  so 
that  no  devise  of  lands  to  a  corporation  by  will  is  good, 
except  for  charitable  uses,  by  statute  43  Eliz.  c.  4,  which 
exception  is  again  greatly  narrowed  by  the  statute  9  Geo. 
II.  c.  36.  And  also,  by  a  great  variety  of  statutes,  their 
privilege  even  of  purchasing  from  any  living  grantor  is 
much  abridged,  so  that  now  a  corporation,  either  ecclesi- 
astical or  lay,  must  have  a  license  from  the  king  to  purchase 
before  they  can  exert  that  capacity  which  is  vested  in  them 
by  the  common  law;  nor  is  even  this  in  all  cases  sufficient. 
These  statutes  are  generally  called  the  statutes  of  mort- 
main, all  purchases  made  by  corporate  bodies  being  said  to 
be  purchases  in  mortmain,  in  mortua  manii/  for  the  reason 
that  these  purchases  being  usually  made  by  ecclesiastical 
bodies,  the  members  of  which  (being  professed)  were  reck- 
oned dead  persons  in  law,  land  therefore  holden  by  them 
might  with  great  propriety  be  said  to  be  held  in  mortua 
manu.^ 

The  general  duties  of  all  bodies  politic,  considered  in 
their  corporate  capacity,  may,  like  those  of  natural  persons, 

5.  By-laws  must  be  consistent  with  cept  in  Pennsylvania  have  not  been 
its  charter  and  not  unreasonable,  adopted  in  this  country.  Clark  on 
Clark  on  Corp.  (2d  Ed.),  442,  444.  Corp.    (2d   Ed.),    120;    2   Kent   Com., 

6.  But  not  ultra  vires.     Id.  430.  281-283;    Methodist   Church   v.   Rem- 

7.  In  dead  hand.  ington,  1  Watts.  219;  Runyan  v.  Cos- 

8.  The    statutes    of    mortmain    ex-  ter,  14  Peters,  122. 


132  Of  Cokpoeations.  [Book  I. 

be  reduced  to  this  single  one,  that  of  acting  up  to  the  end 
or  design,  whatever  it  be,  for  which  they  were  created  by 
their  founder.    [480] 

in.  How  may  these  corporations  be  visited. 

The  law  has  provided  proper  persons  to  visit,  inquire  into, 
and  correct  all  irregularities  that  arise  in  such  corporations, 
either  sole  or  aggregate,  and  whether  ecclesiastical,  civil, 
or  eleemosynary.  With  regard  to  all  ecclesiastical  corpora- 
tions the  ordinary  is  their  visitor,  so  constituted  by  the 
canon  law,  and  from  thence  derived  to  us.  The  pope  form- 
erly, and  now  the  king,  as  supreme  ordinary,  is  the  visitor 
of  the  archbishop  or  metropolitan;  the  metropolitan  has  the 
charge  and  coercion  of  all  his  suffragan  bishops,  and  the 
bishops  in  their  several  dioceses  are  in  ecclesiastical  matters 
the  visitors  of  all  deans  and  chapters,  of  all  parsons  and 
vicars,  and  of  all  other  spiritual  corporations.  With  re- 
spect to  all  lay  corporations,  the  founder,  his  heirs  or  as- 
signs, are  the  visitors  whether  the  foundation  be  civil  or 
eleemosynary. 

The  founder  of  all  corporations  in  the  strictest  and  orig- 
inal sense  is  the  king  alone,  for  he  only  can  incorporate  a 
society;  and  in  civil  incorporations,  such  as  a  mayor  and 
commonalty,  &c.,  where  there  are  no  possessions  or  endow- 
ments given  to  the  body,  there  is  no  other  founder  but  the 
king.  But  in  eleemosynary  foundations,  such  as  colleges 
and  hospitals,  where  there  is  an  endowment  or  lands,  the 
law  distinguishes  and  makes  two  species  of  foundation :  the 
one  fiuidatlo  inciplens,  or  the  incorporation,  in  which  sense 
the  king  is  the  general  founder  of  all  colleges  and  hospitajs; 
the  other  fundatio  perficicns,  or  the  dotation  of  it,  in  which 
sense  the  first  gift  of  the  revenues  is  the  foundation,  and  he 
who  gives  them  is  in  law  the  founder;  and  it  is  in  this  last 
sense  that  we  generally  call  a  man  the  founder  of  a  college 
or  hospital.  [481]  But  here  the  king  has  his  prerogative; 
for  if  the  king  and  a  private  man  join  in  endowing  an  elee- 
mosynary foundation,  the  king  alone  shall  be  the  founder 
of  it.  And  in  general,  the  king  being  the  sole  founder  of 
all  civil  corporations,  and  the  endower  the  perficient  founder 


-Chap.  XVIII.]  Of  Corporations.  ~  133 

of  all  eleemosynary  ones,  the  right  of  visitation  of  the 
former  results,  according  to  the  rule  laid  down,  to  the  king, 
and  of  the  latter  to  the  patron  or  endower. 

The  king  being  thus  constituted  by  law  visitor  of  all  civil 
corporations,  the  law  has  also  appointed  the  place  wherein 
he  shall  exercise  this  jurisdiction,  which  is  the  Court  of 
King's  Bench,"  where,  and  where  only,  all  misbehaviors  of 
this  kind  of  corporations  are  inquired  into  and  redressed, 
and  all  their  controversies  decided. 

As  to  eleemosynary  corporations,  by  the  •  dotation  the 
founder  and  his  heirs  are  of  common  right  the  legal  visitors, 
to  see  that  such  property  is  rightly  employed,  as  might 
otherwise  have  descended  to  the  visitor  himself;  but  if  the 
founder  has  appointed  and  assigned  any  other  person  to 
be  visitor,  then  his  assignee  so  appointed  is  invested  with 
all  the  founder's  power,  in  exclusion  of  his  heir.  [482] 
Eleemosynary  corporations  are  chiefly  hospitals  or  colleges 
in  the  universities.  And  with  regard  to  hospitals,  if  the 
hospital  be  spiritual  the  bishop  shall  visit;  but  if  lay,  the 
patron. 

Whatever  might  be  formerly  the  opinion  of  the  clergy, 
it  is  now  held  as  established  common  law  that  colleges  are 
lay  corporations,  though  sometimes  totally  composed  of 
ecclesiastical  persons,  and  that  the  right  of  visitation  does 
not  arise  from  any  principles  of  the  canon  law,  but  of  neces- 
sity was  created  by  the  common  law.  By  the  common  law 
the  office  of  visitor  is  to  judge  according  to  the  statutes  of 
the  college,  and  to  expel  and  deprive  upon  just  occasions, 
and  to  hear  all  appeals  of  course;  and  from  him  and  him 
only  the  party  grieved  ought  to  have  redress,  the  founder 

9.  As  to  the  powers  of  the  state  tracts."  Dartmouth  College  v.  Wood- 
over  corporations,  see,  generally,  ward,  4  Wheat.  518;  Clark  on  Corp. 
Clark  on  Corp.   (2d  Ed.),  ch.  8.    It  is  (2d  Ed.),  202. 

now  well' settled  that  the  charter  of  The  legal  process  for  inquiring  into 

a    private    corporation    is    a   contract  any  excess  of  its  powers  by  a  corpo- 

within  the  protection  of  that  clause  ration   is   by   an   information    in   the 

of  the  United  States  constitution  de-  nature  of  a  quo  warranto,  considered 

tlaring  that  "  no  state  shall  pass  any  later, 
law   impairing  the  obligation  of  con- 


134  Of  Corporations.  [Book  T. 

having  reposed  in  him  so  entire  a  confidence  that  he  will 
administer  justice  impartially,  that  his  determinations  are 
final  and  examinable  in  no  other  court  whatsoever.  [484] 
But  where  the  visitor  is  under  a  temporary  disability,  there 
the  Court  of  King's  Bench  will  interpose  to  prevent  a  de- 
fect of  justice.  Also  it  is  said  that  if  a  founder  of  an  elee- 
mosynary foundation  appoints  a  visitor  and  limits  his  juris- 
diction by  rules  and  statutes,  if  the  visitor  in  his  sentence 
exceeds  those  rules,  an  action  lies  against  him;  but  it  is 
otherwise  where  he  mistakes  in  a  thing  within  his  power. 

IV.  How  may  corporations  be  dissolved. 

Any  particular  member  may  be  disfranchised  or  lose  his 
place  in  the  corporation  by  acting  contrary  to  the  laws  of 
the  society  or  the  laws  of  the  land,  or  he  may  resign  it  by 
his  own  voluntary  act.  But  the  body  politic  may  also  itself 
be  dissolved  in  several  ways,  which  dissolution  is  the  civil 
death  of  the  corporation;  and  in  this  case  their  lands  and 
tenements  shall  revert  to  the  person  or  his  heirs  who 
granted  them  to  the  corporation;  for  the  law  doth  annex  a 
condition  to  every  such  grant,  that,  if  the  corporation  be 
dissolved,  the  grantor  shall  have  the  lands  again,  because 
the  cause  of  the  grant  faileth.  The  grant  is  indeed  only 
during  the  life  of  the  corporation,  which  may  endure  for- 
ever; but  when  that  life  is  determined  by  the  dissolution  of 
the  body  politic,  the  grantor  takes  it  back  by  reversion,  as 
in  the  case  of  every  other  grant  for  life.  The  debts  of  a 
corporation,  either  to  or  from  it,  are  totally  extinguished 
by  its  dissolution,  so  that  the  members  thereof  cannot  re- 
cover or  be  charged  with  them  in  their  natural  capacities.^ 

A  corporation  may  be  dissolved:  ^^  1.  By  act  of  parlia- 
ment, which  is  boundless  in  its  operations  ^   [485];  2.  By 

1.  This  rule  does  not  apply  to  pri-  la.  See,  generally,  Clark  on   Corp. 

vate  business  corporations.     On  their  (2d  Ed.),  ch.  9. 

dissolution  their  assets  both  real  and  2.  Not  so  with  us  where  the  charter 
personal  are  administered  for  the  constitutes  a  contract.  See  Dart- 
benefit  first  of  their  creditors  and  mouth  College  v.  Woodward,  cited 
afterwards  for  the  stockholders,  supra.  It  is  now  a  common  practice 
Clark  on  Corp.  (2d  Ed.),  121,  247,  to  reserve  in  the  act  of  incorporation 
248  and  cases  cited  in  notes. 


'Chap.  XVIIL]  Of  Corporations.  135 

the  natural  death  of  all  its  members,  in  case  of  an  aggregate 
corporation;  3.  By  surrender  of  its  fra^nchises  into  the  hands 
of  the  king,  which  is  a  kind  of  suicide ;  4.  By  forfeiture  of 
its  charter  through  negligence  or  abuse  of  its  franchises,  in 
which  case  the  law  judges  that  the  body  politic  has  broken 
the  condition  upon  which  it  was  incorporated,  and  there- 
upon the  incorporation  is  void.  And  the  regular  course  is 
to  bring  an  information  in  nature  of  a  writ  of  quo  warranto, 
to  inquire  by  what  warrant  the  members  now  exercise  their 
corporate  power,  having  forfeited  it  by  such  and  such  pro- 
ceedings.^ 

or  charter  the  right  to  amend  or  re-  mon    law   method    where    there    is    a 

peal  at  legislative  discretion.  legal  existing  body  capable  of  acting 

3.  The  state  only  can  enforce  a  for-  but  which  has  abused  its  power;  quo 

feiture.     The  procedure  is  often  pre-  u-arranto  is  the  proper'method  where 

scribed  by  statute.    When  not  so  pre-  a    body    is    corporate    de   facto    only, 

scribed,  scire  facias  la  the  proper  com-  Clark  on  Corp.   (2d  Ed.),  241,  243. 


BOOK  THE   SECOND. 


OF  THE  BIGHTS  OF  THINGS. 


CHAPTER  I. 

OF   PEOPERTY  IN  GENEBAL.* 

There  is  nothing  which  so  generally  strikes  the  imagination  and  engages 
the  affections  of  mankind  as  the  right  of  property,  or  that  sole  and 
despotic  dominion  which  one  man  claims  and  exercises  over  the  external 
things  of  the  world,  in  total  exclusion  of  the  right  of  any  other  indi- 
vidual in  the  universe.  [2] 

In  the  beginning  of  the  world,  we  are  informed  by  Holy  Writ,  the 
All-bountiful  Creator  gave  to  man  "  dominion  over  all  the  earth,  and  over 
the  fish  of  the  sea,  and  over  the  fowl  of  the  air,  and  over  every  living 
thing  that  moveth  upon  the  earth."  [3]  This  is  the  only  true  and  solid 
foundation  of  man's  dominion  over  external  things.  The  earth,  there- 
fore, and  all  things  therein  are  the  general  property  of  all  mankind, 
exclusive  of  other  beings,  from  the  immediate  gift  of  the  Creator.  And, 
while  the  earth  continued  bare  of  inhabitants,  it  is  reasonable  to  sup- 
pose that  all  was  in  common  among  them,  and  that  every  one  took  from 
the  public  stock  to  his  own  use  such  things  as  his  immediate  necessities 
required. 

These  general  notions  of  property  were  then  sufficient  to  answer  all 
the  purposes  of  human  life,  and  might  perhaps  still  have  answered  them, 
had  it  been  possible  for  mankind  to  have  remained  in  a  state  of  primeval 
simplicity;  as  may  be  collected  from  the  manners  of  many  American 
nations  when  first  discovered  by  the  Europeans,  and  from  the  ancient 
method  of  living  among  the  first  Europeans  themselves.  Not  that  this 
'ComniiiDion  of  goods  seems  ever  to  have  been  applicable,  even  in  the 
earliest  stages,  to  aught  but  the  substance  of  the  thing;  nor  could  it  be 
extended  to  the  use  of  it.  For  by  the  law  of  nature  and  reason,  he  who 
first  began  to  use  it  acquired  therein  a  kind  of  transient  property  that 
lasted  so  long  as  he  was  using  it,  and  no  longer;  or,  to  speak  with 
greater  precision,  the  right  of  possession  continued  for  the  same  time 
only  that  the  act  of  possession  lasted.     Thus  the  ground  was  in  com- 

1.  See,  generally,  upon  this  subject  Maine's  Ancient  Law,  244  et  seq. 

[137] 


138  Of  Property  in  General.  ,    [Book  II. 

mon,  and  no  part  of  it  was  the  permanent  property  of  any  man  in  par- 
ticular. Yet  whoever  was  in  the  occupation  of  any  determined  spot  of 
it,  for  rest,  for  shade,  or  the  like,  acquired  for  the  time  a  sort  of  owner- 
ship, from  which  it  would  have  been  unjust  and  contrary  to  the  law  of 
nature  to  have  driven  him  by  force;  but  the  instant  that  he  quitted  the 
use  or  occupation  of  it,  another  might  seize  it  without  injustice.  Thus 
also  a  vine  or  other  tree  might  be  said  to  be  in  common,  as  all  men 
were  equally  entitled  to  its  produce;  and  yet  any  private  individual 
might  gain  the  sole  property  of  the  fruit  which  he  had  gathered  for  his 
own  repast.   [4] 

But  when  mankind  increased  in  number,  craft,  and  ambition,  It  be- 
came necessary  to  entertain  conceptions  of  more  permanent  dominion, 
and  to  appropriate  to  individuals,  not  the  immediate  use  only,  but  the 
very  substance  of  the  thing  to  be  used.  Otherwise  innumerable  tumults 
must  have  arisen,  and  the  good  order  of  the  world  be  continually  broken 
and  disturbed,  while  a  variety  of  persons  were  striving  who  should  get 
the  first  occupation  of  the  same  thing,  or  disputing  which  of  them  had 
actually  gained  it.  As  human  life  also  grew  more  and  more  refined, 
abundance  of  conveniences  were  devised  to  render  it  more  easy,  com- 
modious, and  agreeable,  as  habitations  for  shelter  and  safety,  and  rai- 
ment for  warmth  and  decency.  But  no  man  would  be  at  the  trouble  to 
provide  either,  so  long  as  he  had  only  an  usufructuary  property  in  them,^ 
which  vi^as  to  cease  the  instant  that  he  quitted  possession, — if,  as  soon 
as  he  walked  out  of  his  tent  or  pulled  off  his  garment,  the  next  stranger 
who  came  by  would  have  a  right  to  inhabit  the  one  and  to  wear  the 
other.  In  the  case  of  habitations  in  particular,  it  was  natural  to  ob- 
serve that  even  the  brute  creation,  to  whom  everything  else  was  in  com- 
mon, maintained  a  kind  of  permanent  property  in  their  dwellings,  es- 
pecially for  the  protection  of  their  young, — that  the  birds  of  the  air 
had  nests  and  the  beasts  of  the  field  had  caverns,  the  invasion  of  which 
they  esteemed  a  very  flagrant  injustice,  and  would  sacrifice  their  lives 
to  preserve  them.  Hence  a  property  was  soon  established  in  every  man's 
house  and  home-stall,  which  seem  to  have  been  originally  mere  tem- 
porary huts  or  movable  cabins,  suited  to  the  design  of  Providence  for 
more  speedily  peopling  the  earth,  and  suited  to  the  wandering  life  of 
their  owners,  before  any  extensive  property  in  the  soil  or  ground  was 
established.  [5]  And  there  can  be  no  doubt  but  that  movables  of  every 
kind  became  sooner  appropriated  than  the  permanent  substantial  soil, — 
partly  because  they  were  more  susceptible  of  a  long  occupancy,  which 
might  be  continued  for  months  together  without  any  sensible  interrup- 
tion, and  at  length  by  usage  ripen  into  an  established  right,  but  prin- 
cipally because  few  of  them  could  be  fit  for  use  till  improved  and 
meliorated  by  the  bodily  labor  of  the  occupant,  which  bodily  labor,, 
bestowed  upon  any  subject  which  before  lay  in  common  to  all  men, 
is  universally/allowed  to  give  the  fairest  and  most  reasonable  title  to  an 
exclusive  property  therein. 


Cjiap.  I.]  Of  Pkopertt  in  General.  139 

The  article  of  food  was  a  more  immediate  call,  and  therefore  a  more 
early  consideration.  Such  as  were  not  contented  with  the  spontaneous 
product  of  the  earth,  sought  for  a  more  solid  refreshment  in  the  flesh  of 
beasts,  which  they  obtained  by  hunting.  But  the  frequent  disappointments 
incident  to  that  method  of  provision  induced  them  to  gather  together  such 
animals  as  were  of  a  more  tame  and  sequacious  nature,  and  to  establish 
a  permanent  property  in  their  flocks  and  herds  in  order  to  sustain  them- 
selves in  a  less  precarious  manner,  partly  by  the  milk  of  the  dams,  and 
partly  by  the  flesh  of  the  young.  The  support  of  these  their  cattle  made 
the  article  of  water  also  a  very  important  point.  And  therefore  the 
book  of  Genesis  (the  most  venerable  monument  of  antiquity,  considered 
merely  with  a  ^'iew  to  history)  will  furnish  us  with  frequent  instances 
of  violent  contentions  concerning  wells,  the  exclusive  property  of  which 
appears  to  have  been  established  in  the  first  digger  or  occupant,  even 
in  such  places  where  the  ground  and  herbage  remained  yet  in  common. 

All  this  while  the  soil  and  pasture  of  the  earth  remained  still  in  com- 
mon as  before,  and  open  to  every  occupant,  except,  perhaps,  in  the 
neighborhood  of  towns,  where  the  necessity  of  a  sole  and  exclusive 
property  in  lands  (for  the  sake  of  agriculture)  was  earlier  felt,  and 
therefore  more  readily  complied  with.  [6J  Otherwise,  when  the  multitude 
of  men  and  cattle  had  consumed  every  convenience  on  one  spot  of 
ground,  it  was  deemed  a  natural  right  to  seize  upon  and  occupy  such 
other  lands  as  would  more  easily  supply  their  necessities.  This  prac- 
tice Is  still  retained  among  the  wild  and  uncultivated  nations  that  have 
never  been  formed  into  civil  states,  like  the  Tartars  and  others  in  the 
East. 

Upon  the  same  principle  was  founded  the  right  of  migration,  or  send- 
ing colonies  to  find  out  new  habitations,  when  the  mother  country  was 
overcharged  with  inhabitants,  which  was  practised  as  well  by  the  Phoe- 
nicians and  Greeks  as  the  Germans,  Scythians,  and  other  northern  peo- 
ple. [7]  And  so  long  as  it  was  confined  to  the  stocking  and  cultivation 
of  desert,  uninhabited  countries,  it  kept  strictly  within  the  limits  of  the 
law  of  nature. 

As  the  world  by  degrees  grew  more  populous,  it  daily  became  more 
difficult  to  find  out  new  spots  to  inhabit  without  encroaching  upon  former 
occupants,  and,  by  constantly  occupying  the  same  individual  spot,  the 
fruits  of  the  earth  were  consumed  and  its  spontaneous  produce  destroyed, 
without  any  provision  for  future  supply  or  succession.  It  therefore  be- 
came necessary  to  pursue  some  regular  method  of  providing  a  constant 
subsistence,  and  this  necessity  produced,  or  at  least  promoted  and  en- 
couraged, the  art  of  agriculture.  And  the  art  of  agriculture,  by  a  regular 
connection  and  consequence,  introduced  and  established  the  idea  of  a 
more  permanent  property  in  the  soil  than  had  hitherto  been  received 
and  adopted.  It  was  clear  that  the  earth  would  not  produce  her  fruits 
in  sufficient  quantities  without  the  assistance  of  tillage^  but  who  would 


140  Of  Property  in  General.  [Book  II. 

be  at  the  pains  of  tilling  it  if  another  might  watch  an  opportunity  to 
seize  upon  and  enjoy  the  product  of  his  industry,  art,  and  labor?  Had 
not,  therefore,  a  separate  property  in  lands  as  well  as  movables  been 
vested  in  some  individuals,  the  world  must  have  continued  a  forest,  and 
men  have  been  mere  animals  of  prey,  which,  according  to  some  philo- 
sophers, is  the  genuine  state  of  nature.  Whereas  now, — so  graciously 
has  Providence  interwoven  our  duty  and  our  happiness  together, — the 
result  of  this  very  necessity  has  been  the  ennobling  of  the  human  species, 
by  giving  it  opportunities  of  improving  its  rational  faculties,  as  well  as 
of  exerting  its  natural.  [8]  Necessity  begat  property;  and  in 'order  to 
insure  that  property,  recourse  was  had  to  civil  society,  which  brought 
along  with  it  a  long  train  of  inseparable  concomitants;  ^states,  govern- 
ment, laws,  punishments,  and  the  public  exercise  of  religious  duties.  Thus 
connected  together,  it  was  found  that  a  part  only  of  society  was  suffi- 
cient to  provide  by  their  manual  labor  for  the  necessary  subsistence  of 
all,  and  leisure  was  given  to  others  to  cultivate  the  human  mind,  to  in- 
vent useful  arts,  and  to  lay  the  foundations  of  science. 

The  only  question  remaining  is.  How  this  property  became  actually 
vested,  or  what  it  is  that  gave  a  man  an  exclusive  right  to  retain  in  a 
permanent  manner  that  specific  land  which  before  belonged  generally 
to  everybody,  but  particularly  to  nobody.  And  as  we  before  observed 
that  occupancy  gave  the  right  to  the  temporary  use  of  the  soil,  so  it 
is  agreed  upon  all  hands  that  occupancy  gave  ailso  the  original  right  to 
the  permanent  property  in  the  substance  of  the  earth  itself,  which  ex- 
cludes every  one  else  but  the  owner  from  the  use  of  it.^ 

2.  Mr.  Locke  says,  "that  the  labour  and  we  have  not  advanced  a  single 
of  a  man's  body,  and  the  work  of  his  step  by  this  demonstration, 
hands,  we  may  say  are  properly  his.  Tlie  account  of  Grotius  and  Puffen- 
Wliatsoever  then  he  removes  out  of  dorf,  wlio  maintain  that  the  origin 
the  state  that  nature  hath  provided  and  inviolability  of  property  are 
and  left  it  in,  he  hath  mixed  his  la-  founded  upon  a  tacit  promise  or  com- 
bour  with,  and  joined  to  it  something  pact,  and  tiierefore  we  cannot  invade 
that  is  his  own,  and  thereby  makes  another's  property  without  a  viola- 
it  his  property."     (On  Gov.,  c.  5.)  tion  of  a  promise  or  a  breach  of  good 

But  this  argument  seems  to  be  a  faith,  seems  equally,  or  more,  super- 
petitio  principii;  for  mixing  labour  fluous  and  inconclusive, 
with  a  thing,  can  signify  only  to  There  appears  to  be  just  the  same 
make  an  alteration  in  its  shape  or  necessity  to  call  in  the  aid  of  a  prom- 
form;  and  if  I  had  a  right  to  the  sub-  ise  to  account  for,  or  enforce,  every 
stance,  before  any  labour  was  be-  other  moral  obligation,  and  to  say 
stowed  upon  it,  that  right  still  ad-  that  men  are  bound  not  to  beat  or 
heres  to  all  that  remains  of  the  sub-  murder  each  other,  because  they  have 
stance,  whatever  changes  it  may  have  promised  not  to  do  so.  Men  are  bound 
undergone;  if  I  h^d  no  right  before,  to  fulfil  their  contracts  and  engage- 
it  is  clear   that  I  have  none  after;  ments,  because  society  could  not  oth- 


Chap.  I.]  Of  Property  in  General.  141 

Property,  both  in  lands  and  movables,  being  thus  originally  acquired 
by  the  first  taker,  which  taking  amounts  to  a  declaration  that  he  in- 
tends to  appropriate  the  thing  to  his  own  use,  it  remains  in  him,  by  the 
principles  of  universal  law,  till  such  time  as  he  does  some  other  act 
which  shows  an  intention  to  abandon  it:  for  then  it  becomes,  naturally 
speaking,  publici  juris  2a  once  more,  and  is  liable  to  be  again  appro- 
priated by  the  next  occupant.  [9]  So  if  one  is  possessed  of  a  jewel,  and 
casts  it  into  the  sea  or  a  public  highway,  this  is  such  an  express  derelic- 
tion that  a  property  will  be  vested  in  the  first  fortunate  finder  that  will 
seize  it  to  his  own  use.  But  if  he  hides  it  privately  in  the  earth  or  other 
secret  place,  and  it  is  discovered,  the  finder  acquires  no  property  therein, 
for  the  owner  hath  not  by  this  act  declared  any  intention  to  abandon 
it,  but  rather  the  contrary;  and  if  he  loses  or  drops  it  by  accident,  it 
cannot  be  collected  from  thence  that  he  designed  to  quit  the  possession, 
and  therefore  in  such  a  case  the  property  still  remains  in  the  loser,  who 
may  claim  it  again  of  the  finder. 

Bilt  this  method  of  one  man's  abandoning  his  property  and  another 
seizing  the  vacant  possession,  however  well  founded  in  theory,  could 
not  long  subsist  in  fact.  It  was  calculated  merely  for  the  rudiments  of 
civil  society,  and  necessarily  ceased  among  the  complicated  interests 
and  artificial  refinements  of  polite  and  established  government.  In  these 
it  was  found  that  what  became  inconvenient  or  useless  to  one  man  was 
highly  convenient  and  useful  to  another,  who  was  ready  to  give  in  ex- 
change for  it  some  equivalent  that  was  equally  desirable  to  the  former 
proprietor.  Thus  mutual  convenience  introduced  commercial  traffic  and 
the  reciprocal  transfer  of  property  by  sale,  grant,  or  conveyance,  which 
may  be  considered  either  as  a  continuance  of  the  original  possession 
which  the  first  occupant  had,  or  as  an  abandoning  of  the  thing  by  the 
present  owner  and  an  immediate  successive  occupancy  of  the  same  by 
the  new  proprietor.  [10]  The  voluntary  dereliction  of  the  owner  and 
delivering  the  possession  to  another  individual  amount  to  a  transfer  of 

erwise  exist;  men  are  bound  to  re-  When  an  untutored  Indian  has  set 
f rain  from  another's  property,  because  before  him  the  fruit  whieh  he  has 
likewise  society  could  not  otherwise  plucked  from  the  tree  that  protects 
exist.  Nothing  therefore  is  gained  by  him  from  the  heat  of  the  sun,  and 
resolving  one  obligation  into  the  the  shell  of  water  raised  from  the 
otlier.  fountain  that  springs  at  his  feet;  if 
But  how,  or  when,  then,  does  prop-  he  is  driven  by  any  daring  intruder 
erty  commence?  I  conceive  no  better  from  this  repast,  so  easy  to  be  re- 
answer  can  be  given,  than  by  occu-  placed,  he  instantly  feels  and  resents 
pancy,  or  when  any  thing  is  separated  the  violation  of  that  law  of  property, 
for  private  use  from  the  common  whieh  nature  herself  has  written  upon 
stores  of  nature.  This  is  agreeable  the  hearts  of  all  mankind, 
to  the  reason  and  sentiments  of  man-  2a.  Of  public  right, 
kind,  prior  to  all  civil  establishments.  "         i 


142  Of  Property  nx  General.  [Book  IL 

the  property,  the  proprietor  declaring  his  intention  no  longer  to  occupy 
the  thing  himself,  but  that  his  own  right  of  occupancy  shall  be  vested  in 
the  new  acquirer.  Or,  taken  in  the  other  light,  if  I  agree  to  part  with 
an  acre  of  my  land  to  Titius,  the  deed  of  conveyance  is  an  evidence  of 
my  intending  to  abandon  the  property;  and  Titius,  being  the  only  or 
first  man  acquainted  with  such  my  intention,  immediately  steps  in  and 
seizes  the  vacant  possession.  Thus  the  consent  expressed  by  the  con- 
veyance gives  Titius  a  good  right  against  me,  and  possession,  or  occu- 
pancy, confirms  that  right  against  all  the  world  besides. 

The  most  universal  and  effectual  way  of  abandoning  property  is  by 
the  death  of  the  occupant,  when,  both  the  actual  possession  and  inten- 
tion of  keeping  possession  ceasing,  the  property  which  is  founded  upon 
such  possession  and  intention  ought  also  to  cease  of  course.  For. 
naturally  speaking,  the  instant  a  man  ceases  to  be,  he  ceases  to  have 
any  dominion;  else,  if  he  had  a  right  to  dispose  of  his  acquisitions  one 
moment  beyond  his  life,  he  would  also  have  a  right  to  direct  their  dis- 
posal for  a  million  of  ages  after  him,  which  would  be  highly  absurd  and 
inconvenient.  All  property  must  therefore  cease  upon  death,  consider- 
ing men  as  absolute  individuals  and  unconnected  with  civil  society;  for 
then,  by  the  principles  before  established,  the  next  immediate  occupant 
would  acquire  a  right  in  all  that  the  deceased  possessed.  But  as,  under 
civilized  governments,  which  are  calculated  for  the  peace  of  mankind, 
such  a  constitution  would  be  productive  of  endless  disturbances,  the 
universal  law.  of  almost  every  nation  (which  is  a  kind  of  secondary  law 
of  nature)  has  either  given  the  dying  person  a  power  of  continuing  his 
property  by  disposing  of  his  possessions  by  will,  or  in  case  he  neglects 
to  dispose  of  it,  or  is  not  permitted  to  mak^  any  disposition  at  all,  the 
municipsrl  law  of  the  country  then  steps  in  and  declares  who  shall  be 
the  successor,  representative,  or  heir  of  the  deceased, — that  is,  who 
alone  shall  have  a  right  to  enter  upon  this  vacant  possession,  in  order 
to  avoid  that  confusion  which  its  becoming  again  common  would  oc- 
casion. [11]  And  further,  in  case  no  testament  be  permitted  by  the  law, 
or  none  be  made,  and  no  heir  can  be  found  so  qualified  as  the  law  re- 
quires, still,  to  prevent  the  robust  title  of  occupancy  from  again  taking 
place,  the  doctrine  of  escheats  is  adopted  in  almost  every  country, 
whereby  the  sovereign  of  the  state  and  those  who  claim  under  his  au- 
thority are  the  ultimate  heirs,  and  succeed  to  those  inheritances  to 
which  no  other  title  can  be  formed. 

The  right  of  inheritance,  or  descent  to  the  children  and  relations  of 
the  deceased,  seems  to  have  been  allowed  much  earlier  than  the  right 
of  devising  by  testament.  A  man's  children  or  nearest  relations  are 
usually  about  him  on  his  death-bed,  and  are  the  earliest  witnesses  of 
his  decease.  [12]  They  become  therefore  generally  the  next  immediate 
occupants,  till  at  length  in  process  of  time  this  frequent  usage  ripened 
into  general  law.  And  therefore  also  in  the  earliest  ages,  on  failure 
of  children  a  man's  servants  born  under  his  roof  were  allowed  to  be 


Chap.  L]  Of  Property  in  General.  143 

his  heirs,  being  Immediately  on  the  spot  when  he  died.  For  we  find  the 
old  patriarch  Abraham  expressly  declaring,  that  "  since  God  had  given 
him  no  seed,  his  steward  Eliezer,  one  born  in  his  house,  was  his  heir." 

While  property  continued  only  for  life,  testaments  were  useless  and 
unknown;  and  when  it  became  inheritable  the  inheritance  was  long  in- 
defeasible, and  the  children  or  heirs  at  law  were  incapable  of  exclusion 
by  will.  Till  at  length  it  was  found  that  so  strict  a  rule  of  inheritance 
made  heirs  disobedient  and  headstrong,  defrauded  creditors  of  their 
just  debts,  and  prevented  many  provident  fathers  from  dividing  or  charg- 
ing their  estates  as  the  exigence  of  their  families  required.  This  in- 
troduced pretty  generally  the  right  of  disposing  of  one's  property,  or  a 
part  of  it,  by  testament;  that  is,  by  written  or  oral  instructions  properly 
^oitnessed  and  authenticated,  according  to  the  pleasure  of  the  deceased, 
which  we  therefore  emphatically  style  his  toiU.  This  was  established  in 
some  countries  much  later  than  in  others.  With  us  in  England,  till  mod- 
ern times,  a  man  could  only  dispose  of  one-third  of  his  movables  from  his 
wife  and  children,  and  in  general  no  will  was  permitted  of  lands  till 
the  reign  of  Henry  VII.  and  then  only  of  a  certain  portion;  for  it  was 
not  till  after  the  Restoration  that  the  power  of  devising  real  property 
became  so  universal  as  at  present. 

Wills,  therefore,  and  testaments,  rights  of  inheritance  and  successions, 
are  all  of  them  creatures  of  the  civil  or  municipal  laws,  and  accordingly 
are  in  all  respects  regulated  by  them,  every  distinct  county  having  differ- 
ent ceremonies  and  requisites  to  make  a  testament  completely  valid; 
neither  does  anything  vary  more  than  the  right  of  Inheritance  under 
different  national  establishments.  [13] 

But,  after  all,  there  are  some  few  things  which,  notwith- 
standing the  general  introduction  and  continuance  of  prop- 
erty, must  still  unavoidably  remain  in  common,  being  such 
wherein  nothing  but  an  usufructary  property  is  capable 
of  being  had,  and  therefore  they  still  belong  to  the  first 
occupant  during  the  time  he  holds  possession  of  them,  and 
no  longer.  [14]  Such  (among  others)  are  the  elements  of 
light,  air,  and  water,  w^iich  a  man  may  occupy  by  means 
of  his  windows,  his  gardens,  his  mills,  and  other  conveni- 
ences. Such  also  are  the  generality  of  those  animals  which 
are  said  to  be  ferae  naturae,^  or  of  a  wild  and  untamable  dis- 
position, which  any  man  may  seize  upon  and  keep  for  his 
own  use  and  pleasure.  All  these  things,  so  long  as  they 
remain  in  possession,  every  man  has  a  right  to  enjoy  with- 

3.  Of  a  wild  nature. 


144  Of  Property  in  General.  [Book  II. 

out  disturbance;  but  if  once  they  escape  from  his  custody, 
or  he  voluntary  abandons  the  use  of  them,  they  return  to 
the  common  stock,  and  any  man  else  has  an  equal  right  to 
seize  and  enjoy  them  afterwards.^ 

Again,  there  are  other  things  in  which  a  permanent  prop- 
erty may  subsist,  not  only  as  to  the  temporary  use  but  also 
the  solid  substance,  and  which  yet  would  be  frequently 
found  without  a  proprietor,  had  not  the  wisdom  of  the  law 
provided  a  remedy  to  obviate  this  inconvenience.  Such 
are  forests  and  other  waste  grounds  which  were  omitted 
to  be  appropriated  in  the  general  distribution  of  lands;  such 
also  are  wrecks,  estrays,  and  that  species  of  wild  animals 
which  the  arbitrary  constitutions  of  positive  law  have  dis- 
tinguished from  the  rest  by  the  well-known  appellation  of 
game.°  With  regard  to  these  and  some  others,  as  disturb- 
ances and  quarrels  would  frequently  arise  among  individ'- 
uals  contending  about  the  acquisition  of  this  species  of 
property  by  first  occupancy,  the  law  has  therefore  wisely 
cut  up  the  root  of  dissension  by  vesting  the  things  them- 
selves in  the  sovereign  of  the  state,  or  else  in  his  representa- 
tives appointed  and  authorized  by  him,  being  usually  the 
lords  of  manors.  [15]  And  thus  the  legislature  of  England 
has  universaly  promoted  the  grand  ends  of  civil  society,  the 
peace  and  security  of  individuals,  by  steadily  pursuing  that 
wise  And  orderly  maxim,  of  assigning  to  everything  capable 
of  ownership  a  legal  and  determinate  owner. 

4.  See  Ewell  on  Fixtures  (2d  Ed.)j  5.  Consult  local  statutes  regulating 

*241  and  notes.  the  taking  of  game. 


CnAp.  II.J  Of  Real  Pboperty.  145 

CHAPTER  11. 

OF  EEAI.  property;  AND,  FIRST,  OF  CORPOREAL  HEREDITAMENTS. 

The  objects  of  dominion  or  property  are  things  as  contra- 
distinguished from  persons;  and  things  are  by  the  law  of 
England  distributed  into  two  kinds,  things  real  and  things 
persotwl.  [16]  Things  real  are  such  as  are  permanent, 
fixed,  and  immovable,  which  cannot  be  carried  out  of  their 
place,  as  lands  and  tenements;  things  personal  are  goods, 
money,  and  all  other  movables  which  may  attend  the  own- 
er's person  "wherever  he  thinks  proper  to  go. 

First,  with  regard  to  their  several  sorts  or  kinds,  things 
real  are  usually  said  to  consist  in  lands,  tenements,  or  here- 
ditaments. Land  comprehends  all  things  of  a  permanent, 
substantial  nature.  Tenement  is  a  word  of  still  greater 
extent,  and  though  in  its  vulgar  acceptation  it  is  only  ap- 
plied to  houses  and  other  buildings,  yet  in  its  original, 
proper,  and  legal  sense  it  signifies  everything  that  may  be 
hoi  den,  provided  it  be  of  a  permanent  nature,  whether  it  be 
of  a  substantial  and  sensible  or  of  an  unsubstantial  ideal 
kind.  [17]  Thus  liherum  tenementam,  frank  tenement,  or 
freehold,  is  applicable  not  only  to  lands  and  other  solid 
objects,  but  also  to  offices,  rents,  commons,  and  the  like. 
And  as  lands  and  houses  are  tenements,  so  is  an  advowson 
a  tenement;  and  a  franchise,  an  office,  a  right  of  common, 
a  peerage,  or  other  property  of  the  like  unsubstantial  kind, 
are  all  of  them,  legally  speaking,  tenements.  But  an  here- 
ditament, says  Sir  Edward  Coke,  is  by  much  the  largest 
and  most  comprehensive  expression;  for  it  includes  not  only 
lands  and  tenements,  but  whatsoever  may  be  inherited,  be 
it  corporeal  or  incorporeal,  real,  personal,  or  mixed.  Thus 
an  heirloom,^  or  implement  of  furniture  which  by  custom 

6.  We  have  found  no  instance  where  Fixtures   (2d  Ed.),   *232  note,  where 

the  law  of  heir-looms  has  been  recog-  the  English  law  upon  this  subject  is 

nized  as  a  part  of  the  jurisprudence  fully  considered  following  Mr.  Ferard 

of  the  United  States.     See  Ewell  on  (Fixtures),  192  et  seq. 

10 


146  Of  Eeal  Pkop^kty.  [Book  II. 

descends  to  the  heir  together  with  a  house,  is  neither  land 
nor  tenement,  but  a  mere  movable;  yet,  being  inheritable, 
is  comprised  under  the  general  word  hereditament.  An<l 
so  a  condition,'^  the  benefit  of  which  may  descend  to  a  man 
from  his  ancestor,  is  also  an  hereditament. 

Hereditaments  are  of  two  kinds,  corporal  and  incorpo- 
real. Corporeal  consist  of  such  as  affect  the  senses,  such  as 
may  be  seen  and  handled  by  the  body;  incorporeal  are  not 
the  object  of  sensation,  can  neither  be  seen  nor  handled,  are 
creatures  of  the  mind,  and  exist  only  in  contemplation. 

Corporeal  hereditaments  consist  wholly  of  substantial 
and  permanent  objects,  all  which  may  be  comprehended 
under  the  general  denomination  of  land  only.  For  land; 
says  Sir  Edward  Coke,  comprehendeth,  in  its  legal  signifi- 
cation, any  ground,  soil,  or  earth  whatsoever,  as  arable, 
meadows,  pastures,  woods,  moors,  waters,  marshes,  furzes, 
and  heath.  It  legally  includeth  also  all  castles,  houses, 
and  other  buildings ;  for  they  consist,  said  he,  of  two  things, 
land,  which  is  the  foundation,  and  structure  thereupon,  so 
that  if  I  convey  the  land  or  ground,  the  structure  or  build- 
ing passeth  therewith.  [18]  .  It  is  observable  that  water  is 
here  mentioned  as  a  species  of  land,  which  may  seem  a  kind 
of  solecism;  but  such  is  the  language  of  the  law.  And  there- 
fore I  cannot  bring  an  action  to  recover  possession  of  a  pool 
or  other  piece  of  water  by  the  name  of  tvater  only,  either 
by  calculating  its  capacity,  as  for  so  many  cubical  yards, 
or  by  superficial  measure,  for  twenty  acres  of  water,  or  by 
general  description,  as  for  a  pond,  a  watercourse,  or  a 
rivulet;  but  I  must  bring  my  action  for  the  land  that  lies 
at  the  bottom,  and  must  call  it  twenty  acres  of  land  covered 
ivith  loater.^  For  water  is  a  movable,  wandering  thing,  and 
must  of  necessity  continue  common  by  the  law  of  nature, 
so  that  I  can  only  have  a  temporary;  transient,  usufructuary 
property  therein;  wherefore,  if  a  body  of  water  runs  out  of 

7.  "  In  its  most  extended  significa-  in  case  of  a  will,  to  suspend,  revoke 

tion  a  condition  is  a  clause  in  a  con-  or    modify    the    devise    or    bequest." 

tract  or  agreement  which  has  for  its  1  Bouv.  Diet.,  Condition, 
object  to  suspend,  to  rescind,  or  to         8.  Jackson  v.  Halstead,  5  Cow.  216. 
modify   the   principal   obligation;    or 


Chap.  II.]  Of  Real  Property.  147 

my  pond  into  another  man's,  I  have  no  right  to  reclaim  it. 
But  the  land  which  that  water  covers  is  permanent,  fixed, 
and  immovable;  and  therefore  in  this  I  may  have  a  certain 
substantial  property,  of  which  the  law  will  take  notice,  and 
not  of  the  other. 

Land  hath  also,  in  its  legal  signification,  an  indefinite 
extent,  upwards  as  well  as  downwards.**  Upwards,  there- 
fore, no  man  may  erect  any  building,  or  the  like,  to  over- 
hang another's  land;  and,  downwards,  whatever  is  in  a 
direct  line,  between  the  surface  of  any  land  and  the  centre 
of  the  earth,  belongs  to  the  owner  of  the  surface,  as  is  every 
day's  experience  in  the  mining  countries.  So  that  the  word 
^ '  land  ' '  includes  not  only  the  face  of  the  earth,  but  every- 
thing under  it  or  over  it.*  And,  therefore,  if  a  man  grants 
all  his  lands,  he  grants  thereby  all  his  mines  of  metal  and 
other  fossils,  his  woods,  his  waters,  and  his  houses,  as  well 
as  his  fields  and  meadows.'^  Not  but  the  particular  names 
of  the  things  are  equally  sufficient  to  pass  them,  except  in 
the  instance  of  water,  by  a  grant  of  which  nothing  passes 

but  a  right  of  fishing.  [19]      But  the  capital  distinction  is 

— _- — * . 

9.  There  has  been  considerable  liti-  by  a  conveyance  of  the  land.     Evvell 

gation    concerning   trees    growing   on  on   Fixtures,   *252    and   notes,   where 

boundaiy  lines.   "It  matters  not  that  numerous   cases   on   this   subject   are 

some  of  the   roots    [or   branches]    of  collected.     See,  generally,  the  chapter 

the  tree  are  in   [or  over]   the  soil  of  (7)    on  Emblements  in  Ewell  on  Fix- 

the  defendant  when  the  body  or  main  tures,   where  the  subject  of   crops  is 

part  of  the  tree  is  in  the  soil  of  the  considered  in  all  its  relations, 

plaintiff,  for  to   this  the  rest  of  the  1.  As  to  the  right  of  aviation  over 

tree  appertains."    Masters  v.  PoUie,  2  private   jJroperty,   see   18   Law  Notes 

Rolle,    141;    Ewell   on   Fixtures,    *64,  (July,  1914),  62;  Davids  on  the  Law 

notes.     If,  however,  the  trunk  of  the  of  Motor  Vehicles,  sees.  290,  291. 

tree    is    on    the    boundary    line    and  2.  Growing   crops,    trees,    minerals, 

partly  upon  the  land  of  each  of  the  houses,  fixtures,  etc.,  may  be  sold  and 

adjacent  proprietors,  they  are  tenants  conveyed    separately    from    the    land 

in  common  of  the  tree;   and  neither  and  thus  constructively  severed  from 

may   cut   or   destroy   it   without   the  it  so  as  to  become  subject  to  the  rules 

consent  of  the  other.     Ewell  on  Fix-  governing  personal  property.   So  they 

tures    (2d   Ed.),    *64   note   and  cases  may    be    expressly   reserved   from   a 

cited.  conveyance  of  the  land  with  the  same 

Growing  crops,  when  not  reserved,  effect.     See  Ewell  on  Fixtures,   *45, 

as  a  rule  are  passed  to  the  grantee  46  and  notes. 


148  Of  Real  Property.  -         [Book  IL 

this,  that  by  the  name  of  a  castle,^  messuage,  toft,  croft,  or 
the  like,  nothing  else  will  pass  except  what  falls  with  the 
utmost  propriety  under  the  terms  made  use  of.  But  by 
the  name  of  land,  which  is  nomcn  generalissimum,*  every- 
thing terrestrial  will  pass. 

3.  A  conveyance  of  a  building  will  4.  A  most  general  name, 

pass  the  land  upon  which  it  is  situ- 
ated.   Esty  V.  Currier,  98  Mass.  502. 


Chap.  III.]      Of  Incorporeal  Hereditaments.  149 

CHAPTER  III. 

OF   INCORPOREAL   HEREDITAMENTS. 

An  incorporeal  hereditament  is  a  right  issuing  out  of  a 
thing  corporate  (whether  real  or  personal),  or  concerning, 
or  annexed  to,  or  exercisable  within  the  same.  [20]  It  is 
not  the  thing  corporate  itself,  which  may  consist  in  lands, 
houses,  jewels,  or  the  like,  but  something  collateral  thereto, 
as  a  rent  issuing  out  of  those  lands  or  houses,  or  an  office 
relating  to  those  jewels.  In  short,  corporeal  hereditaments 
are  the  substance  Avhich  may  be  always  seen,  always 
handled;  incorporeal  hereditaments  are  but  a  sort  of  acci- 
dents which  inhere  in  and  are  supported  by  that  substance, 
and  may  belong  or  not  belong  to  it  without  any  visible 
alteration  therein.  Their  existence  is  merely  in  idea  and 
abstracted  contemplation,  though  their  effects  and  profits 
may  be  frequently  objects  of  our  bodily  senses.  And  in- 
deed, if  we  would  fix  a  clear  notion  of  an  incorporeal  here- 
ditament, we  must  be  careful  not  to  confound  together  the 
profits  produced  and  the  thing  or  hereditament  which  pro- 
duces them. 

Incorporeal  hereditaments  are  principally  of  ten  sorts: 
advowsons,  tithes,  commons,  ways,  offices,  dignities,  fran- 
chises, corodies  or  pensions,  annuities,*'  and  rents.  [21] 

I.  Advowson  is  the  right  of  presentation  to  a  church,  or  ecclesiastical 
benefice. 

II.  Tithes  are  defined  to  be  the  tenth  part  of  the  increase  yearly  aris- 
ing and  renewing  from  the  profits  of  lands,  the  stock  upon  lands,  and 
the  personal  industry  of  the  inhabitants.  [24]  Tithes  are  due  of  common 
right  to  the  parson  of  the  parish,  unless  there  be  a  special  exemption.  [28] 

III.  Common,  or  right  of  common,  is  a  profit  which  a  man  hath  in 
the  land  of  another,  as  to  feed  his  beasts,  to  catch  fish,  to  dig  turf,  to 
cut  wood,  or  the  like.  [32]  And  hence  common  is  chiefly  of  four  sorts: 
common  of  pasture  or  piscary,  of  turbary,  and  of  estovers. 

6.  "Neither  tithes,  advowsons,  com-  things    of    which    an    estate    can    be 

mens,  as  understood  in  England,  of-  predicated,    and    annuities    are    but 

fices,  dignities,  corodies,  nor  pensions,  claims  of  a  personal  nature."  2  Wasli. 

are  known   to  the  American  law  as  Real  Prop.,  "4. 


150  Of  Incokporeal  Hereditaments.         [Book  II. 

1.  Common  of  pasture  is  a  right  of  feeding  one's  beasts  on  another's 
land;  for  in  those  waste  grounds  which  are  usually  called  commons, 
the  property  of  the  soil  is  generally  in  the  lord  of  the  manor,  as  in  com- 
mon fields  it  is  in  the  particular  tenants.  This  kind  of  common  is  either 
appendant,  appurtenant  (because  of  vicinage),  or  in  gross. 

Common  appendant  is  a  right  belonging  to  the  owners  or  occupiers  of 
arable  land  to  put  commonable  beasts  upon  the  lord's  waste  and  upon 
the  lands  of  other  persons  within  the  same  manor.  [33]  Commonable 
beasts  are  either  beasts  of  the  plough,  or  such  as  manure  the  ground. 
This  is  a  matter  of  most  universal  right,  and  it  was  originally  permitted, 
not  only  for  the  encouragement  of  agriculture,  but  for  the  necessity 
of  the  thing.  For  when  lords  of  manors  granted  out  parcels  of  land  to 
tenants,  for  services  either  done  or  to  be  done,  these  tenants  could  not 
plough  or  manure  the  land  without  beasts,  these  beasts  could  not  be 
sustained  without  pasture,  and  pasture  could  not  be  had  but  in  the  lord's 
wastes,  and  on  the  uninclosed  fallow  grounds  of  themselves  and  the 
other  tenants.  The  law  therefore  annexed  this  right  of  common,  as 
inseparably  incident  to  the  grant  of  the  lands.  And  this  was  the  original 
of  common  appendant.  Common  appurtenant  ariseth  from  no  connection 
of  tenure,  nor  from  any  absolute  necessity,  but  may  be  annexed  to  lands 
in  other  lordships,  or  extend  to  other  beasts  besides,  such  as  are  gen- 
erally commonable,  as  hogs,  goats,  or  the  like,  which  neither  plough 
nor  manure  the  ground.  This  not  arising  from  any  natural  propriety 
or  necessity,  like  common  appendant,  is  therefore  not  of  general  right, 
but  can  only  be  claimed  by  immemorial  usage  and  prescription.  Com- 
mon because  of  vicinage,  or  neighborhood,  is  where  the  inhabitants  of 
two  townships  which  lie  contiguous  to  each  other  have  usually  inter- 
comlnoned  with  one  another,  the  beasts  of  the  one  straying  mutually 
into  the  other's  fields  without  any  molestation  from  either.  This  is  in- 
deed only  a  permissive  right,  intended  to  excuse  what  in  strictness  is  a 
trespass  in  both,  and  to  prevent  a  multiplicity  of  suits,  and  therefore 
either  township  may  enclose  and  bar  out  the  other,  though  they  have 
intercommoned  time  out  of  mind.  Neither  hath  any  person  of  one  town 
a  right  to  put  his  beasts  originally  into  the  other's  common;  but  if  they 
escape,  and  stray  thither  of  themselves,  the  law  winks  at  the  trespass. 
[34]  Common  in  gross,  or  at  large,  is  such  as  is  neither  appendant  nor 
appurtenant  to  land,  but  is  annexed  to  a  man's  person,  being  granted  to 
him  and  his  heirs  by  deed;  or  it  may  be  claimed  by  prescriptive  right, 
as  by  a  parson  of  a  church,  or  the  like  corporation  sole.  This  is  a  separ- 
ate inheritance,  entirely  distinct  from  any  landed  property,  and  may  be 
vested  in  one  who  has  not  a  foot  of  ground  in  the  manor. 

2,  3.  Common  of  piscary  is  a  liberty  of  fishing  in  another  man's  water, 
as  eommon  of  turbary  is  a  liberty  of  digging  turf  upon  another's  ground. 
There  is  also  a  common  of  digging  for  coals,  minerals,  stones,  and  the 
like.  All  these  bear  a  resemblance  to  common  of  pasture  in  many  re- 
Bpects,  though  in  one  point  they  go  much  further,  common  of  pasture 


Chap.  III.]      Of  Incorporeal  Hereditaments.  151 

being  only  a  right  of  feeding  on  the  herbage  and  vesture  of  the  soil, 
which  renews  annually;  but  common  of  turbary,  and  those  aforemen- 
tioned, are  a  right  of  carrying  away  the  very  soil  itself. 

4.  Common  of  estovers,  or  estouviers, — that  is,  necessaries  (from  estoffer, 
to  furnish), — is  a  liberty  of  taking  necessary  wood,  for  the  use  of  furni- 
ture of  a  house  or  farm,  from  off  another's  estate.  [35]  The  Saxon  word 
hote  is  used  by  us  as  synonymous  to  the  French  estovers,  and  therefore 
Iiouse-bot«  is  a  sufRcient  allowance  of  wood  to  repair  or  to  burn  in  the 
house,  which  latter  is  sometimes  called  fire-bote;  plongh-bote  and  cart- 
bote  are  wood  to  be  employed  in  making  and  repairing  all  instruments  of 
husbandry;  and  haj-bote,  or  hedge-bote,  is  wood  for  repairing  of  hay, 
hedges,  or  fences. 

These  botes  or  estovers  must  be  reasonable  ones,  and  such 
any  tenant  or  lessee  may  take  off  the  land  let  or  demised 
to  him,  without  waiting  for  any  leave,  assignment,  or  ap- 
pointment of  the  lessor,  unless  he  be  restrained  by  special 
covenant  to  the  contrary. 

IV.  A  fourth  species  of  incorporeal  hereditaments  is  that 
of  ways,^  or  the  right  of  going  over  another  man's  ground, 
I  speak  not  here  of  the  king's  highways,  which  lead  from 
town  to  town,  nor  yet  of  common  w^ays,  leading  from  a 

7.  An   easement   is   defined  by   Mr.  implication,  as  where  land  granted  is 

Hopkins  in  his  work  on  Eeal  Property  represented  as  bounded  or  reached  by 

(1896)   as  "a  right  in  the  owner  of  a    street,    or    where    a    map   showing 

one  parcel  of  land  by  reason  of  such  such  a  street  is  referred  to  in  a  deed, 

ownership,  to  use  the  land  of  another  They  may  also  be  implied  from  the 

for  a  special  purpose  not  inconsistent  necessity  of  the  case.    See,  generally, 

with  the  general  property  in  the  lat-  Hopkins,   Real   Prop.,   359   and   cases 

ter."     Hopkins,  Real  Prop.,  349;   cit-  cited  in  the  notes, 
ing   2   Wash.   Real   Prop.,   25.     Ease-  Easements  of  light  and  air  over  an 

ments  may  be  created  by  grant,  pre-  adjacent   lot,   while  existing  in   Eng- 

scription  or  adverse  use  for  the  time  land,  are  generally  repudiated  in  this 

required  by  the  statute  of  limitations.  country,  though   recognized   in   a  few 

Hopkins,  Real  Prop.,   350-354.  states.   See  the  cases  collected  in  Hop- 

A  right  of  way  is  defined  by  Mr.  kins.  Real  Prop.,  363,  364.  See  also  as 
Hopkins  as  "  an  easement  in  favor  of  to  lateral  and  subjacent  support,  ease- 
an  individual  or  class  of  individuals  ments  in  water,  etc.  Hopkins,  Real, 
to  have  a  passage  on  an  established  Prop.,  365,  366,  368  and  cases  cited, 
line  over  land  of  the  servient  owner  See,  generally,  as  to  easements  Wash- 
to  and  from  land  of  the  dominant  burn  on  Easements;  Goddard  on  Ease- 
owner."     Hopkins.  Real  Prop.,  359.  ments,     and     Jones     on     Easements 

Rights  of  way  frequently  arise  by  (1898). 


152  Of  Incorporeal  Hereditaments.         [Book  II. 

village  into  the  fields,  but  of  private  ways,  in  which  a  par- 
ticular man  may  have  an  interest  and  a  right,  though 
another  be  owner  of  the  soil.  This  may  be  granted  on  a 
special  permission,  as  when  the  owner  of  the  land  grants  to 
another  the  liberty  of  passing  over  his  grounds  to  go  to 
church,  to  market,  or  the  like,  in  which  case  the  gift  or 
grant  is  particular,  and  confined  to  the  grantee  alone.  It 
dies  with  the  person,  and,  if  the  grantee  leaves  the  country, 
he  cannot  assign  over  his  right  to  any  other,  nor  can  he 
justify  taking  another  person  in  his  company.  [36]  A  way 
may  be  also  by  prescription,  as  if  all  the  inhabitants  of  sucli 
a  hamlet,  or  all  the  owners  and  occupiers  of  such  a  farm, 
have  immemorially  used  to  cross  such  a  ground  for  such  a 
particular  purpose;  for  this  immemorial  usage  supposes  an 
original  grant,  whereby  a  right  of  way  thus  appurtenant  to 
land  or  houses  may  clearly  be  created.  A  right  of  way  may 
also  arise  by  act  and  operation  of  law;  for  if  a  man  grants 
me  a  piece  of  ground  in  the  middle  of  his  field,  he  at  the 
same  time  tacitly  and  impliedly  gives  me  a  way  to  come  to 
it,  and  I  may  cross  his  land  for  that  purpose  without  tres- 
pass. For  when  the  law  doth  give  anything  to  one,  it 
giveth  impliedly  whatsoever  is  necessary  for  enjoying  the 
same.  By  the  law  of  the  Twelve  Tables  at  Rome,  where  a 
man  had  the  right  of  way  over  another's  land,  and  the  road 
was  out  of  repair,  he  who  had  the  right  of  way  might  go 
over  any  part  of  the  land  he  pleased,  which  was  the  estab- 
lished rule  in  public  as  well  as  private  ways.  And  the  law 
of  England  in  both  'cas§s  seems  to  correspond  with  the 
Roman.  [True  only  where  the  owner  of  the  land  is  by  grant 
or  prescription  under  obligation  to  repair  the  way.] 

V.  Offices,  which  are  a  right  to  exercise  a  public  or  private  employ- 
ment, and  to  take  the  fees  and  emoluments  thereunto  belonging,  are 
also  incorporeal  hereditaments.^ 

VI.  Dignities  bear  a  near  relation  to  offices.  [37]  Of  the  nature  of 
these  we  treated  at  large  in  the  former  book.    It  will  therefore  be  here 

8.  No  offices  are  hereditary  in  this 
country  and  hence  none  are  heredita- 
ments. 


Chap.  III.]      Of  Incorporeal  Hereditaments.  153 

BuflScient  to  mention  them  as  a  species  of  incorporeal  hereditaments, 
wherein  a  man  may  have  a  property  or  estate.^ 

VII.  Franchises  are  a  seventh  species.  Franchise  and  liberty  are  used 
as  synonymous  terms,  and  their  definition  is  a  royal  privilege,  or  branch 
of  the  king's  prerogative,  subsisting  in  the  hands  of  a  subject.  Being 
therefore  derived  from  the  crown,  they  must  arise  from  the  king's  grant, 
or  in  some  cases  may  be  held  by  prescription,  which,  as  has  been  fre- 
quently said,  presupposes  a  grant.  It  is  a  franchise  for  a  number  of 
persons  to  be  incorporated  and  subsist  as  a  body  politic,  with  a  power 
to  maintain  perpetual  succession,  and  do  other  corporate  acts,  and  each 
individual  member  of  such  corporation  is  also  said  to  have  a  franchise, 
or  freedom. 1 

VIII.  Corodies  are  a  right  of  sustenance,  or  to  receive  certain  allot- 
ments of  victual  and  provision  for  one's  maintenance.  [40]  In  lieu  of 
which  (especially  when  due  from  ecclesiastical  persons)  a  pension  or 
sum  of  money  is  sometimes  substituted.  And  these  may  be  reckoned 
another  species  of  incorporeal  hereditaments,  though  not  chargeable  on 
or  issuing  from  any  corporeal  inheritance,  but  only  charged  on  the  per- 
son of  the  owner  in  respect  of  such  his  inheritance. 

IX.  Annuities,  which  are  much  of  the  same  nature,  only  that  these 
arise  from  temporal,  as  the  former  from  spiritual,  persons.  An  annuity 
is  a  thing  very  distinct  from  a  rent-charge,  with  which  it  is  frequently 
confounded;  a  rent-charge  being  a  burthen  imposed  upon  and  issuing 
out  of  lands,  whereas  an  annuity  is  a  yearly  sum  chargeable  only  upon 
the  person  of  the  grantor.  Therefore,  if  a  man  by  deed  grant  to  another 
the  sum  of  20/-  per  annum,  without  expressing  out  of  what  lands  it  shall 
issue,  no  lands  at  all  shall  be  charged  with  it,  but  it  is  a  mere  personal 
annuity,  which  is  of  so  little  account  in  the  law,  that  if  granted  to  an 
eleemosynary  corporation  it  is  not  within  the  statutes  of  mortmain;  and 
yet  a  man  may  have  a  real  estate  in  it,  though  his  security  is  merely 
personal. 

X.  A  rent  is  defined  to  be  a  certain  profit  ^  issuing  yearly 
out  of  lands  and  tenements  corporeal.  [41]  It  must  be  a 
profit:  yet  there  is  no  occasion  for  it  to  be,  as  it  usually  is, 
a  sum  of  money,  for  spurs,  capons,  horses,  corn,  and  other 
matters  may  be  rendered,  and  frequently  are  rendered,  by 
way  of  rent.  It  may  also  consist  in  services  or  manual 
operations,  as,  to  plough  so  many  acres  of  ground,  to  attend 

9.  The  same  remarks  as  in  note  8  2.  The      incorporeal      hereditament 

apply  to  dignities.  rent  is  not  the  profit  itself,  but  the 

1.  The   word   franchise  is  with  us      right  to  receive  such  profit, 
usually  applied  to  the  right  to  be  a 
corporation. 


154  Op  Incokporeal  Hereditaments.         [Book  IL 

the  king  or  the  lord  to  the  wars,  and  the  like,  —  which  ser- 
vices in  the  eye  of  the  law  are  profits.  This  profit  must  also 
be  certain;  or  that  which  may  be  reduced  to  a  certainty  by 
either  party.  It  must  also  issue  yearly:  though  there  is  no 
occasion  for  it  to  issue  every  successive  year;  but  it  may 
be  reserved  every  second,  third,  or  fourth  year;  yet,  as  it 
is  to  be  produced  out  of  the  profits  of  lands  and  tenements, 
as  a  recompense  for  being  permitted  to  hold  or  enjoy  them, 
it  ought  to  be  reserved  yearly,  because  those  profits  do 
annually  arise  and  are  annually  renewed.  It  must  issue 
out  of  the  thing  granted,  and  not  be  part  of  the  land  or 
thing  itself,  wherein  it  differs  from  an  exception  in  the 
grant,  which  is  always  of  part  of  the  tiling  granted.  It 
must,  lastly,  issue  out  of  lands  and  tenements  corporeal, 
that  is,  from  some  inheritance  whereunto  the  owner  or 
grantee  of  the  rent  may  have  recourse  to  distrein.  There- 
fore a  rent  cannot  be  reserved  out  of  an  advowson,  a  com- 
mon, an  office,  a  franchise,  or  the  like.  But  a  grant  of  such 
annuity  or  sum  may  operate  as  a  personal  contract  and 
oblige  the  grantor  to  pay  the  money  reserved,  or  subject 
him  to  an  action  of  debt;  though  it  doth  not  affect  the  in- 
heritance, and  is  no  legal  rent  in  contemplation  of  law. 

There  are  at  common  law  three  manner  of  rents,  rent- 
service,  rent-charge,  and  rent-seek.  Rent-service  is  so 
called  because  it  hath  some  corporeal  service  incident  to  it, 
as  at  the  least  fealty  or  his  feodal  oath  of  fidelity.  [42]  For 
if  a  tenant  holds  his  land  by  fealty  and  ten  shillings  rent, 
or  by  the  service  of  ploughing  the  lord's  land  and  five  shil- 
lings rent,  these  pecuniary  rents,  being  connected  with  per- 
sonal services,  are  therefore  called  rent-service.  And  for 
these,  in  case  they  be  behind,  or  arrere,,  at  the  day  appointed, 
the  lord  may  distrein^  of  common  right,  without  reserving 

3.  The  right  of  distress  at  common  ers.     See   Hopkins,   Real   Prop.,   146. 

law  was  a  right  of  detainer  and  did  In   Illinois   it   has   been   modified   by 

not  carry  the  right  to  sell  the  thing  statute   so   that  after  distress  taken 

distrained.    1  Bouvier  Law  Diet,  title,  the   landlord   must   proceed   in   court. 

Distress;  3  Bl.  Com.,  6.    The  right  to  See  Rev.  St.  111.,  ch.  80,  sec.  17  et  seq. 

distrain  for  rent  exists  in  some  of  the  For  a  discussion  of  the  common ^law 

atates  and  has  been  abolished  in  oth-  of   distress,   see   the  leading  case   of 


Chap.  III.]      Of  Incorporeal  Heeeditaments.  155 

any  special  power  of  distress,  provided  he  hath  in  himself 
the  reversion,  or  future  estate  of  the  lands  and  tenements, 
after  the  lease  or  particular  estate  of  the  lessee  or  grantee 
is  expired.  A  rent-charge  is  where  the  owner  of  the  rent 
hath  no  future  interest  or  reversion  expectant  in  the  land; 
as  where  a  man  by  deed  maketh  over  to  others  his  whole 
estate  in  fee-simple,  with  a  certain  rent  payable  thereout, 
and  adds  to  the  deed  a  covenant  or  clause  of  distress,  that 
if  the  rent  be  arrere,  or  behind,  it  shall  be  lawful  to  distrein 
for  the  same.  In  this  case  the  land  is  liable  to  the  distress^ 
not  of  common  right,  but  by  virtue  of  the  clause  in  the  deed, 
and  therefore  it  is  called  a  rent-c^ar^e,  because  in  this 
manner  the  land  is  charged  with  a  distress  for  the  payment 
of  it.  Rent-seek,  red  it  us  siccus,  or  barren  rent,  is  in  effect 
nothing  more  than  a  rent  reserved  by  deed,  but  without  any^ 
clause  of  distress. 

There  are  also  other  species  of  rents,  which  are  reducible  to  these 
three.  Rents  of  assise  are  the  certain  established  rents  of  the  freehold- 
ers and  ancient  copyholders  of  a  manor,  which  cannot  be  departed  from 
or  varied.  Those  of  the  freeholders  are  frequently  called  chief-rents, 
reditus  capitales.  And  both  sorts  are  indifferently  denominated  qtiit-renis, 
quieti  reditus,  because  thereby  the  tenant  goes  quit  and  free  of  all  other 
services.  Rack-rent  is  only  a  rent  of  the  full  value  of  the  tenement,  or 
near  it.  [43]  A  fee-farm  rent  is  a  rent-charge  issuing  out  of  an  estate 
in  fee,  of  at  least  one-fourth  of  the  value  of  the  lands  at  the  time  of  its 
reservation. 

These  are  the  general  divisions  of  rents;  but  the  difference  between 
them  (in  respect  to  the  remedy  for  recovering  them)  is  now  totally 
abolished  [Stat.  4  Geo.  II.  c.  28],  and  all  persons  may  have  the  like 
remedy  by  distress  for  rents-seek,  rents  of  assise,  and  chief-rents,  as  in 
case  of  rents  reserved  upon  lease. 

Rent  is  regularly  due  and  payable  upon  the  land  from 
whence  it  issues  if  no  particular-  place  is  mentioned  in  the 
reservation;  but  in  case  of  the  king,  the  payment  must  be 
either  to  his  officers  at  the  exchequer,  or  to  his  receiver  in 
the  country.  And  strictly  the  rent  is  demandable  and  pay- 
able before  the  time  of  sunset  of  the  day  whereon  it  is  re- 
served, though  perhaps  not  absolutely  due  till  midnight.* 

Simpson  v.  Hartopp,  Willes,   512;    1         4.  See  the  local  statutes. 

Smith's  Lead  Cas.  (9th  Am.  Ed.),  720- 

736. 


156  Of  THE  Feodal  System.  [Book  II. 


CHAPTER  IV. 

OF   THE   FEODAL   SYSTEM. 

The  constitntion  of  fends  had  its  original  from  the  military  policy  of 
th€  northern  or  Celtic  nations,  the  Goths,  the  Huns,  the  Franks,  the 
Vandals,  and  the  Lombards,  who  all,  migrating  from  the  same  officina 
gentium,  poured  themselves  in  vast  quantities  into  all  the  regions  of 
Europe,  at  the  declension  of  the  Roman  empire.  [45]  It  was  brought  by 
them  from  their  own  countries,  and  continued  in  their  respective  colo- 
nies as  the  most  likely  means  to  secure  their  new  acquisitions;  and  to 
that  end,  large  districts  or  parcels  of  land  were  allotted  by  the  con- 
quering general  to  the  superior  officers  of  the  army,  and  by  them  dealt 
out  again  in  smaller  parcels  or  allotments  to  the  inferior  officers  and 
most  deserving  soldiers.  These  allotments  were  called  feoda,  feuds,  fiefs, 
or  fees;  which  last  appellation  in  the  northern  language  signifies  a  con- 
ditional stipend  or  reward.  Rewards  or  stipends  they  evidently  were, 
and  the  condition  annexed  to  them  was  that  the  possessor  should  do 
service  faithfully,  both  at  home  and  in  the  wars,  to  him  by  whom  they 
were  given;  for  which  purpose  he  took  the  juramentum  fidelitatis,  or 
oath  of  fealty,  and  in  case  of  the  breach  of  this  condition  and  oath,  by 
not  performing  the  stipulated  service  or  by  deserting  the  lord  in  battle, 
the  lands  were  again  to  revert  to  him  who  granted  them. 

Allotments  thus  acquired  naturally  engaged  such  as  accepted  them  to 
defend  them,  and  as  they  all  sprang  from  the  same  right  of  conquest, 
no  part  could  subsist  independent  of  the  whole;  wherefore  all  givers  as 
well  as  receivers  were  mutually  bound  to  defend  each  other's  posses- 
sions. [46]  But  as  that  could  not  effectually  be  done  in  a  tumultuous, 
irregular  way,  government,  and  to  that  purpose  subordination,  was 
necessary.  Every  receiver  of  lands,  or  feudatory,  was  therefore  bound, 
when  called  upon  by  his  benefactor,  or  immediate  lord  of  his  feud  or 
fee,  to  do  all  in  his  power  to  defend  him.  Such  benefactor  or  lord  was 
likewise  subordinate  to  and  under  the  command  of  his  immediate  bene- 
factor or  superior,  and  so  upwards  to  the  prince  or  general  himself; 
and  the  several  lords  were  also  reciprocally  bound,  in  their  respective 
graduations,  to  protect  the  possessions  they  had  given.  Thus  the  feodal 
connection  was  established,  a  proper  military  subjection  was  naturally 
Introduced,  and  an  army  of  feudatories  was  always  ready  enlisted,  and 
mutually  prepared  to  muster,  not  only  in  defence  of  each  man's  own 
several  property,  but  also  in  defence  of  the  whole  and  of  every  part  of 
this  their  newly-acquired  country, — the  produce  of  which  constitution 
was  soon  sufficiently  visible  in  the  strength  and  spirit  with  which  they 
maintained  their  conquests. 

This  feodal  polity,  ■which  was  by  degrees  established  over  all  the  con- 


Chap.  IV.]  Of  the  Feodal  System.  157 

tinent  of  Europe,  seems  not  to  have  been  received  In  this  part  of  our 
island,  at  least  not  universally  and  as  a  part  of  the  national  constitution, 
till  the  reign  of  William  the  Norman.  [48]  Not  but  that  it  is  reasonable 
to  believe,  from  abundant  traces  in  our  history  and  laws,  that  even  in 
the  times  of  the  Saxons,  who  were  a  swarm  from  what  Sir  William 
Temple  calls  the  same  northern  hive,  something  similar  to  this  was  in 
use,  yet  not  so  extensively,  nor  attended  with  all  the  rigor  that  was 
afterwards  imported  by  the  Nojmans.  For  the  Saxons  were  firmly  set- 
tled in  this  island  at  least  as  early  as  the  year  600,  and  it  was  not  till 
two  centuries  after  that  feuds  arrived  at  their  full  vigor  and  maturity, 
even  on  the  continent  of  Europe. 

This  Introduction,  however,  of  the  feudal  tenures  into  England  by 
King  William  does  not  seem  to  have  been  effected  immediately  after  the 
Conquest,  nor  by  the  mere  arbitrary  will  and  power  of  the  conqueror, 
but  to  have  been  gradually  established  by  the  Norman  barons  and  others 
in  such  forfeited  lands  as  they  received  from  the  gift  of  the  conqueror, 
and  afterwards  universally  consented  to  by  the  great  council  of  the 
nation,  long  after  his  title  was  established.  Indeed  from  the  prodigious 
slaughter  of  the  English  nobility  at  the  battle  of  Hastings  and  the  fruit- 
less insurrections  of  those  who  survived,  such  numerous  forfeitures  had 
accrued  that  he  was  able  to  reward  his  Norman  followers  with  very 
large  and  extensive  possessions,  which  gave  a  handle  to  the  monkish 
historians,  and  such  as  have  implicitly  followed  them,  to  represent  him 
as  having  by  right  of  the  sword  seized  on  all  the  lands  of  England,  and 
dealt  them  out  again  to  his  own  favorites, — a  supposition  grounded  upon 
a  mistaken  sense  of  the  word  conquest,  which  in  its  feodal  acceptation 
signifies  no  more  than  acquisition  [see,  however,  Hume's  Hist,  of  Eng. 
ch.  4] ;  and  this  has  led  many  hasty  writers  into  a  strange  historical 
mistake,  and  one  which,  upon  the  slightest  examination,  will  be  found 
to  be  most  untrue.  [49]  However,  certain  it  is  that  the  Normans  now 
began  to  gain  very  large  possessions  in  England,  and  their  regard  for 
the  feodal  law  under  which  they  had  long  lived,  together  with  the  king's 
recommendation  of  this  policy  to  the  English,  as  the  best  way  to  put 
themselves  on  a  military  footing,  and  thereby  to  prevent  any  future 
attempts  from  the  Continent,  were  probably  the  reasons  that  prevailed 
to  effect  its  establishment  here  by  law.  And  though  the  time  of  this 
great  revolution  in  our  landed  property  cannot  be  ascertained  with  ex- 
actness, yet  there  are  some  circumstances  that  may  lead  us  to  a  probable 
conjecture  concerning  it.  For  we  learn  from  the  Saxon  Chronicle  that 
in  the  nineteenth  year  of  King  William's  reign  an  invasion  was  appre- 
hended from  Denmark,  and  the  military  constitution  of  the  Saxons  being 
then  laid  aside,  and  no  other  introduced  in  its  stead,  the  kingdom  was 
wholly  defenceless,  which  occasioned  the  king  to  bring  over  a  large  army 
of  Normans  and  Bretons,  who  were  quartered  upon  every  landholder, 
and  greatly  oppressed  the  people.  This  apparent  weakness,  together 
with   the   grievances   occasioned   by   a   foreign   force,   might   co-operate 


158  Of  the  Feodal  System.       [Book  II. 

with  the  king's  remonstrances,  and  the  better  incline  the  nobilitj'  to 
listen  to  his  proposals  for  putting  them  in  a  posture  of  defence.  For 
as  soon  as  the  danger  was  over,  the  king  held  a  great  council  to  in- 
quire into  the  state  of  the  nation;  the  immediate  consequence  of  which 
was  the  compiling  of  the  great  survey  called  domesday-book,  which  was 
finished  in  the  next  year,  and  in  the  latter  end  of  that  very  year  the 
king  was  attended  by  all  his  nobility  at  Sarum,  where  all  the  principal 
landholders  submitted  their  lands  to  the  yoke  of  military  tenure,  be- 
came the  king's  vassals,  and  did  homage  and  fealty  to  his  person.  This 
may  possibly  have  been  the  era  of  formally  introducing  the  feodal 
tenures  by  law. 

This  new  polity,  therefore,  seems  not  to  have  been  imposed  by  the  con- 
queror but  nationally  and  freely  adopted  by  the  general  assembly  of  the 
whole  realm,  in  the  same  manner  as  other  nations  of  Europe  had  be- 
fore adopted  it.  upon  the  same  principle  of  self-security.  [50]  And  in 
particular  they  had  the  recent  example  of  the  French  nation  before  their 
eyes,  which  had  gradually  surrendered  up  all  its  allodial,  or  free,  lands 
into  the  king's  hands,  who  restored  them  to  the  owners  as  a  bencficium, 
or  feud,  to  be  held  to  them  and  such  of  their  heirs  as  they  previously 
nominated  to  the  king;  and  thus  by  degrees  all  the  allodial  estates  in 
France  were  converted  into  feuds,  and  the  freemen  became  the  vassals 
of  the  crown.  The  only  difference  between  this  change  of  tenures  in 
France  and  that  in  England  was  that  the  former  was  effected  gradually 
by  the  consent  of  private  persons,  the  latter  was  done  at  once  all  over 
England  by  the  common  consent  of  the  nation.  [51] 

The  grand  and  fundamental  maxim  of  all  feodal  tenure 
is  this:  that  all  lands  were  originally  granted  out  by  the 
sovereign,  and  are  therefore  holden,  either  mediately  or 
immediately,  of  the  crown.^  [53]  The  grantor  was  called 
the  proprietor,  or  lord,  being  he  who  retained  the  dominion, 
or  ultimate  property  of  the  feud  or  fee;  and  the  grantee, 
who  had  only  the  use  and  possession  according  to  the  terms 
of  the  grant,  was  styled  the  feudatory,  or  rassnl,  which  was 
only  another  name  for  the  tenant,  or  holder  of  the  lands. 

Though,  on  account  of  the  prejudices  which  we  have  justly  conceived 
against  the  doctrines  that  were  afterwards  grafted  on  this   system,  we 

1.  In  this  country  land  is  held  in  cage,  as  to  which  soe  post,  *80;  1  Bou- 
allodio,  that  is  every  tenant  in  fee  vier  Law  Diet,  allodium;  3  Kent  Com. 
simple  has  an  absolute  and  perfect  390.  The  feudal  system  has,  how- 
title;  yet  in  technical  language  his  ever,  furnished  the  terminology  of  our 
estate  is  called  an  estate  in  fee  simple,  law  of  real  estate  and  hence  should 
and  the  tenure  free  and  common  so-  be  understood  by  the  student. 


CiiAP.  IV.]  Of  the  Feodal  System.  159 

BOW  use  the  word  vassal  opprobriously,  as  synonymous  to  slave  or  bond- 
man, the  manner  of  the  grant  was  by  words  of  gratuitous  and  pure 
donation,  dcdi  et  concessi,  which  are  still  the  operative  words  in  our 
modern  infeodations,  or  deeds  of  feoffment.  This  was  perfected  by  the 
ceremony  of  corporal  investiture,  or  open  and  notorious  delivery  of 
possession  in  the  presence  of  the  other  vassals,  which  perpetuated  among 
them  the  era  of  the  new  acquisition  at  a  time  when  the  art  of  writing 
was  very  little  known,  and  therefore  the  evidence  of  property  was  re- 
posed in  the  memory  of  the  neighborhood,  who,  in  case  of  a  disputed 
title,  were  afterwards  called  upon  to  decide  the  difference,  not  only  ac- 
cording to  external  proofs  adduced  by  the  parties  litigant,  but  also  by 
the  internal  testimony  of  their  own  private  knowledge. 

Besides  an  oath  of  /<?«'<!/,  or  profession  of  faith  to  the  lord,  which  was 
the  parent  of  our  oath  of  allegiance,  the  vassal  or  tenant  upon  investi- 
ture did  usually  homage  to  his  lord,  openly  and  humbly  kneeling,  being 
ungirt,  uncovered,  and  holding  up  his  hands  both  together  between  those 
of  the  lord  who  sate  before  him,  and  there  professing  that  "  he  did  be- 
come his  man,  from  that  day  forth,  of  life  and  limb  and  earthly  honor;" 
and  then  he  received  a  kiss  from  his  lord, — which  ceremony  was  de- 
nominated homagium  or  manhood,  by  the  feudists,  from  the  stated  form 
of  words,  decenio  vester  homo.'   [i54] 

When  the  tenant  had  thus  professed  himself  to  be  the  man  of  his  su- 
perior or  lord,  the  next  consideration  was  concerning  the  service  which, 
as  such,  he  was  bound  to  render  in  recompense  for  the  land  that  he  held. 
This,  in  pure,  proper,  and  original  feuds,  was  only  twofold:  to  follow 
or  do  stiit  to  the  lord  in  his  courts  in  time  of  peace,  and  in  his  armies 
or  warlike  retinue  when  necessity  called  him  to  the  field. 

At  the  first  introduction  of  feuds,  as  they  were  gratuitous,  so  also 
they  were  precarious,  and  held  at  the  tvill  of  the  lord,  who  was  then  the 
sole  judge  whether  his  vassal  performed  his  services  faithfully.  [55] 
Then  they  became  certain  for  one  or  more  years.  Among  the  ancient 
Germans  they  continued  only  from  year  to  year,  an  annual  distribution 
of  lands  being  made  by  their  leaders  in  their  general  councils  or  as- 
semblies. This  was  professedly  done  lest  their  thoughts  should  be 
diverted  from  war  to  agriculture,  lest  the  strong  should  encroach  upon 
the  possessions  of  the  weak,  and  lest  luxury  and  avarice  should  be  en- 
couraged by  the  erection  of  permanent  houses  and  too  curious  an  at- 
tention to  convenience  and  the  elegant  superfluities  of  life.  But  when 
the  general  migration  was  pretty  well  over  and  a  peaceable  possession 
of  the  new-acquired  settlements  had  introduced  new  customs  and  man- 
ners, when  the  fertility  of  the  soil  had  encouraged  the  study  of  hus- 
bandry and  an  affection  for  the  spots  they  had  cultivated  began  naturally 
to  arise  in  the  tillers,  a  more  permanent  degree  of  property  was  intro- 
duced, and  feuds  began  now  to  be  granted  for  the  life  of  the  feudatory. 

2.  I  become  your  man. 


160  Of  the  Feodal  System.  [Book  II. 

But  still  feuds  were  not  yet  hereditary,  though  frequently  granted  by  the 
favor  of  the  lord  to  the  children  of  the  former  possessor,  till  in  process 
of  time  it  became  unusual,  and  was  therefore  thought  hard,  to  reject  the 
heir  if  he  were  capable  to  perform  the  services;  and  therefore  infants, 
women,  and  professed  monks,  who  were  incapable  of  bearing  arms,  were 
also  incapable  of  succeeding  to  a  genuine  feud.  [56]  But  the  heir  when 
admitted  to  the  feud  which  his  ancestor  possessed  used  generally  to 
pay  a  fine  or  acknowledgment  to  the  lord,  in  horses,  arms,  money,  and 
the  like,  for  such  renewal  of  the  feud,  which  was  called  a  relief,  because 
it  raised  up  and  re-established  the  inheritance,  or,  in  the  words  of  the 
feodal  writers,  "  incertam  et  caducam  hercditatem  relevabat."3  This  re- 
lief was  afterwards,  when  feuds  became  absolutely  hereditary,  continued 
on  the  death  of  the  tenant,  though  the  original  foundation  of  it  had 
ceased. 

For  in  process  of  time  feuds  came  by  degrees  to  be  universally  ex- 
tended beyond  the  life  of  the  first  vassal  to  his  sons,  or  perhaps  to  such 
one  of  them  as  the  lord  should  name,  and  in  this  case  the  form  of  the 
donation  was  strictly  observed.  For  if  a  feud  was  given  to  a  man  and 
his  sons,  all  his  sons  succeeded  him  in  equal  portions,  and  as  they  died 
off,  their  shares  reverted  to  their  lord,  and  did  not  descend  to  their  chil- 
dren, or  even  to  their  surviving  brothers,  as  not  being  specified  in  the 
donation.  But  when  such  a  feud  was  given  to  a  man  and  his  heirs  in 
general  terms,  then  a  more  extended  rule  of  succession  took  place;  and 
when  the  feudatory  died,  his  male  descendants  in  infinitum  i  were  ad- 
mitted to  the  succession.  When  any  such  descendant  who  thus  had 
succeeded  died,  his  male  descendants  were  also  admitted  in  the  first 
place,  and  in  defect  of  them  such  of  his  male  collateral  kindred  as  were 
of  the  blood  or  lineage  of  the  first  feudatory,  but  no  others.  For  this 
was  an  unalterable  maxim  in  feodal  succession,  that  "  none  was  capable 
of  inheriting  a  feud  but  such  as  was  of  the  blood  of,  that  is,  lineally 
descended  from,  the  first  feudatory."  And  the  descent,  being  thus  con- 
fined to  males,  originally  extended  to  all  the  males  alike,  all  the  sons 
without  any  distinction  of  primogeniture  succeeding  to  equal  portions 
of  the  father's  feud.  But  this  being  found  upon  many  accounts  incon- 
venient (particularly  by  dividing  the  services,  and  thereby  weakening 
the  strength  of  the  feodal  union),  and  honorary  feuds  (or  titles  of  no- 
bility) being  now  introduced  which  were  not  of  a  divisible  nature,  but 
could  only  be  inherited  by  the  eldest  son,  in  imitation  of  these,  military 
feuds  (or  those  we  are  now  describing)  began  also  in  most  countries 
to  descend,  according  to  the  same  rule  of  primogeniture,  to  the  eldest 
son,  in  exclusion  of  all  the  rest.  [57] 

Other  qualities  of  feuds  were,  that  the  feudatory  could  not  aliene  or 
dispose  of  his  feud,  neither  could  he  exchange,  nor  yet  mortgage,  nor 

3.  It  raised  up  the  uncertain  and  4.  In  infinity. 

fallen  inlieritance. 


Chap.  IV.]  Of  the  Feodal  System.  IGi 

even  devise  it  by  will,  without  the  consent  of  the  lord.  For  the  reason 
■of  conferring  the  feud  being  the  personal  abilities  of  the  feudatory  to 
serve  in  war,  it  was  not  fit  he  should  be  at  liberty  to  transfer  this  gift, 
•either  from  himself  or  from  his  posterity,  who  were  presumed  to  in- 
herit his  valor,  to  others  who  might  prove  less  able.  And  as  the  feodal 
•obligation  was  looked  upon  as  reciprocal,  the  feudatory  being  entitled 
to  the  lord's  protection  in  return  for  his  own  fealty  and  service,  there- 
fore the  lord  could  no  more  transfer  his  seignory  or  protection  without 
consent  of  his  vassal,  than  the  vassal  could  his  feud  without  consent  of 
his  lord:  it  being  equally  unreasonable  that  the  lord  should  extend  his 
protection  to  a  person  to  whom  he  had  exceptions,  and  that  the  vassal 
should  owe  subjection  to  a  superior  not  of  his  own  choosing. 

These  were  the  principal  and  very  simple  qualities  of  the  genuine 
or  original  feuds,  which  were  all  of  a  military  nature  and  in  the  hands 
of  military  persons,  though  the  feudatories,  being  under  frequent  in- 
capacities of  cultivating  and  manuring  their  own  lands,  soon  found  it 
necessary  to  commit  part  of  them  to  inferior  tenants,  obliging  them  to 
such  returns  in  service,  corn,  cattle,  or  money,  as  might  enable  the  chief 
feudatories  to  attend  their  military  duties  without  distraction,  which 
returns,  or  reditus,  were  the  original  of  rents.  And  by  these  means  the 
feodal  polity  was  greatly  extended,  these  inferior  feudatories  (who  held 
what  are  called  in  the  Scots  law  "rere-fiefs")  being  under  similar  ob- 
ligations of  fealty  to  do  suit  of  court,  to  answer  fhe  stipulated  renders 
or  rent-service,  and  to  promote  the  welfare  of  their  immediate  superiors 
or  lords.  But  this  at  the  same  time  demolished  the  ancient  simplicity 
of  feuds,  and  an  inroad  being  once  made  upon  their  constitution,  it  sub- 
jected them,  in  a  course  of  time,  to  great  varieties  and  innovations.  [58J 
Feuds  began  to  be  bought  and  sold,  and  deviations  were  made  from  the 
old  fundamental  rules  of  tenure  and  succession,  which  were  held  no 
longer  sacred  when  the  feuds  themselves  no  longer  continued  to  be 
purely  military.  Hence  these  tenures  began  now  to  be  divided  into 
feoda  propria  et  impropria, — proper  and  improper  feuds, — under  the  for- 
mer of  which  divisions  were  comprehended  such  and  such  only  of  which 
we-  have  before  spoken,  and  under  that  of  improper  or  derivative  feuds 
were  comprised  all  such  as  do  not  fall  within  the  other  descriptions, — 
such,  for  instance,  as  were  originally  bartered  and  sold  to  the  feudatory 
for  a  price;  such  as  were  held  upon  base  or  less  honorable  services, 
or  upon  a  rent,  in  lieu  of  military  service;  such  as  were  in  themselves 
alienable,  without  mutual  license;  and  such  as  might  descend  indiffer- 
ently either  to  males  or  females.  But  where  a  difference  was  not  ex- 
pressed in  the  creation,  such  new  created  feuds  did  in  all  respects  fol- 
low the  nature  of  an  original,  genuine,  and  proper  feud. 

11 


162  Ancient  English  Tenures.  [Book  II. 


CHAPTEK  V. 

OF   THE   ANCIENT    ENGLISH    TENURK3. 

In  this  chapter  we  shall  take  a  short  view  of  the  ancient  tenures  of 
our  English  estates,  or  the  manner  in  which  lands,  tenements,  and  here- 
ditaments might  have  been  holden,  as  the  same  stood  in  force  till  the 
middle  of  the  last  century.  [59] 

Almost  all  the  real  property  of  this  kingdom  i»,  by  the  policy  of  our 
laws,  supposed  to  be  granted  by,  dependent  upon,  and  holden  of,  some 
superior  lord,i  by  and  in  consideration  of  certain  services  to  be  rendered 
to  the  lord  by  the  tenant  or  possessor  of  this  property.  The  thing  holden 
is  therefore  styled  a  tenement,  the  possessors  thereof  tenants,  and  the 
manner  of  their  possession  a  tenure.  Thus  all  the  land  in  the  kingdom 
is  supposed  to  be  holden,  mediately  or  immediately,  of  the  king,  who  is 
styled  the  lord  paramount,  or  above  all.  Such  tenants  as  held  under 
the  king  immediately,  when  they  granted  out  portions  of  their  lands 
to  inferior  persons,  became  also  lords  with  respect  to  those  inferior  per- 
sons, as  they  were  still  tenants  with  respect  to  the  king;  and,  thus 
partaking  of  a  middle  nature,  were  called  mesne,  or  middle  lords.  In 
this  manner  are  all  the  lands  of  the  kingdom  holden  which  are  in  the 
hands  of  subjects;  for,  according  to  Sir  Edward  Coke,  in  the  law  of 
England  we  have  not  properly  allodium,  which  we  have  seen  is  the  name 
by  which  the  feudists  abroad  distinguish  such  estates  of  the  subject  as 
are  not  holden  of  any  superior.  [60] 

All  tenures  being  thus  derived,  or  supposed  to  be  derived,  from  the 
king,  those  that  held  immediately  under  him  in  right  of  his  crown  and 
dignity  were  called  his  tenants  in  capite,  or  in  chief,  which  was  the 
most  honorable  species  of  tenure,  but  at  the  same  time  subjected  the 
tenants  to  greater  and  more  burthensome  services  than  inferior  tenures 
did.  This  distinction  ran  through  all  the  different  sorts  of  tenure,  of 
which  I  now  proceed  to  give  an  account. 

There  seems  to  have  subsisted  among  our  ancestors  four  principal 
species  of  lay  tenures  to  which  all  others  may  be  reduced,  the  grand 
criteria  of  which  were  the  natures  of  the  several  services  or  renders 
that  were  due  to  the  lords  from  their  tenants.  The  services,  in  respect 
of  their  quality,  were  either  free  or  base  services;  in  respect  of  their 
quantity  and  the  time  of  exacting  them,  were  either  certain  or  uncertain. 
Free  services  were  such  as  were  not  unbecoming  the  character  of  a 
soldier  or  a  freeman  to  perform,  as  to  serve  under  his  lord  in  the  wars, 
to  pay  a  sum  of  money,  and  the  like.  [61]  Base  services  were  such  as 
were  only  fit  for  peasants  or  persons  of  a  servile  rank,  as  to  plough  the 

1.  See  ante,  p.  *52,  note. 


CiiAP.  v.]      '  "^      Ancient  English  Tenures.  163 

lord's  land,  to  make  his  hedges,  to  carry  out  his  dung,  or  other  mean 
employments.  The  certain  services,  whether  free  or  base,  were  such  as 
were  stinted  in  quantity,  and  could  not  be  exceeded  on  any  pretence, 
as  to  pay  a  stated  annual  rent,  or  to  plough  such  a  field  for  three  days. 
The  uncertain  depended  upon  unknown  contingencies;  as,  to  do  military 
service  in  person,  or  pay  an  assessment  in  lieu  of  it  when  called  upon, 
or  to  wind  a  horn  whenever  the  Scots  invaded  the  realm,  which  are 
free  services,  or  to  do  whatever  the  lord  should  command,  which  is  a 
base  or  villein  service. 

From  the  various  combinations  of  these  services  have  arisen  the  four 
kinds  of  lay  tenure  which  subsisted  in  England  till  the  middle  of  the 
last  century,  and  three  of  which  subsist  to  this  day.  Of  these  Bracton 
(who  wrote  under  Henry  III.)  seems  to  give  the  clearest  and  most  com- 
pendious account  of  any  author,  ancient  or  modern,  of  which  the  fol- 
lowing is  the  outline  or  abstract:  "Tenements  are  of  two  kinds:  frank- 
tenement  and  villeuage.  And  of  frank-tenements,  some  are  held  freely 
in  consideration  of  homage  and  knight-service;  others  in  free-socage,  with 
the  service  of  fealty  only."  And  again:  "Of  villenages,  some  are  pure 
and  others  privileged.  He  that  holds  in  pure  vilknoge  shall  do  what- 
ever is  commanded  him,  and  always  be  bound  to  an  uncertain  service. 
The  other  kind  of  villenage  is  called  villein-socage,  and  these  villein- 
Eocmen  do  villein  services,  but  such  as  are  certain  and  determined." 
Of  which  the  sense  seems  to  be  as  follows:  First,  where  the  service 
was  free  but  uncertain,  as  military  service  with  homage,  that  tenure  was 
called  the  tenure  in  chivalry  {per  senitium  militare) ,  or  by  knight-ser- 
vice. [62]  Secondly,  where  the  service  was  not  only  free,  but  also 
certain,  as  by  fealty  only,  by  rent  and  fealty,  &c.,  that  tenure  was  called 
liberum  socagium,  or  free  socage.  These  were  the  only  free  holdings  or 
tenements,  the  others  were  villenous  or  servile;  as,  thirdly,  where  the 
service  was  fcose  in  its  nature  and  uncertain  as  to  time  and  quantity,  the 
tenure  was  purum  villenagium  (absolute,  or  pure  villenage).  Lastly, 
where  the  service  was  base  in  its  nature  but  reduced  to  a  certainty,  this 
was  still  villenage,  but  distinguished  from  the  other  by  the  name  of 
privileged  villenage  {villcnagium  privikgiatum)  ;  or  it  might  be  still  called 
socage  (from  the  certainty  of  its  services),  but  degraded  by  their  baseness 
into  the  inferior  title  of  villanum  socagium  (villein-socage). 

I.  The  first,  most  universal,  and  esteemed  the  most  honorable  species 
of  tenure,  was  that  by  knight-service.  This  differed  in  very  few  points, 
as  we  shall  presently  see,  from  a  pure  and  proper  feud,  being  entirely 
military,  and  the  general  effect  of  the  feodal  establishment  in  England. 
To  make  a  tenure  by  knight-service,  a  determinate  quantity  of  land  was 
necessary,  which  was  called  a  knight's  fee  {feodum  militare),  the  measure 
of  which  in  3  Edw.  I.  was  estimated  at  twelve  ploughlands,  and  its  value 
(though  it  varied  with  the  times)  in  the  reign  of  Edward  I.  and  Edward 
II.  was  stated  at  20?.  per  annum.  And  he  who  held  this  proportion  of 
land  (or  a  whole  fee)  by  knight-service  was  bound  to  attend  his  lord  to 


164  Ancient  English  Tenures.  [Book  II. 

the  wars  for  forty  days  In  every  year  if  called  upon,  which  attendance 
was  his  reditus,  or  return,  his  rent  or  service  for  the  land  he  claimed  to 
hold.  If  he  held  only  half  a  knight's  fee,  he  was  only  bound  to  attend 
twenty  days,  and  so  In  proportion. 

This  tenure  of  knight-service  had  all  the  marks  of  a  strict  and  regular 
feud.  It  was  granted  by  words  of  pure  donation  {d'di  et  concessi),  was 
transferred  by  investiture  or  delivering  corporal  possession  of  the  land, 
usually  called  livery  of  seisin,  and  was  perfected  by  homage  and  fealty. 
[63]  It  also  drew  after  It  these  seven  fruits  and  consequences,  as  in- 
separably incident  to  the  tenure  in  chivalry,  viz.:  aids,  relief,  primer 
seisin,  wardship,  marriage,  fines  for  alienation,  and  escheat. 

1.  Aids  were  originally  mere  benevolences  granted  by  the  tenant  to 
his  lord  in  times  of  difficulty  and  distress,  but  in  process  of  time  they 
grew  to  be  considered  as  a  matter  of  right  and  not  of  discretion.  These 
aids  were  principally  three:  First,  to  ransom  the  lord's  person  if  taken 
prisoner;  secondly,  to  make  the  lord's  eldest  son  a  knight, — a  matter 
that  was  formerly  attended  with  great  ceremony,  pomp,  and  expense; 
thirdly,  to  marry  the  lord's  eldest  daughter,  by  giving  her  a  suitable 
portion. 

2.  Relief  {rehvium)  was  before  mentioned  as  incident  to  every  feodal 
tenure,  by  way  of  fine  or  composition  with  the  lord  for  taking  up  the 
estate,  which  was  lapsed  or  fallen  in  by  the  death  of  the  last  tenant.  [65] 
But  though  reliefs  had  their  original  while  feuds  were  only  life-estates, 
yet  they  continued  after  feuds  became  hereditary,  and  were  therefore 
looked  upon  very  justly  as  one  of  the  greatest  grievances  of  tenure,  es- 
pecially when  at  the  first  they  were  merely  arbitrary  and  at  the  will 
of  the  lord,  so  that  if  he  pleased  to  demand  an  exorbitant  relief  It  was 
In  effect  to  disinherit  the  heir. 

3.  Primer  seisin  was  a  feodal  burthen  only  incident  to  the  king's  ten- 
ants in  capite,  and  not  to  those  who  held  of  inferior  or  mesne  lords.  [66] 
It  was  a  right  which  the  king  had,  when  any  of  his  tenants  in  capite  2 
died  seised  of  a  knight's  fee,  to  receive  of  the  heir  (provided  he  were 
of  full  age)  one  whole  year's  profits  of  the  lands  If  they  were  in  immedi- 
ate possession,  and  half  a  year's  profits  if  the  lands  were  in  reversion 
expectant  on  an  estate  for  life. 

4.  These  payments  were  only  due  if  the  heir  was  of  full  age;  but  if 
he  was  under  the  age  of  twenty-one,  being  a  male,  or  fourteen,  being  a 
female,  the  lord  was  entitled  to  the  wardship  of  the  heir,  and  was 
called  the  guardian  in  chivalry.  [67]  This  wardship  consisted  in  having 
the  custody  of  the  body  and  lands  of  such  heir,  without  any  account  of 
the  profits,  till  the  age  of  twenty-one  in  males  and  sixteen  In  females. 

5.  But  before  they  came  of  age  there  was  still  another  piece  of  au- 
thority which  the  guardian  was  at  liberty  to  exercise  over  his  infant 
wards.     I   mean   the   right  of   marriage    (maritagium,   as    contradistin- 

2.  In  chief. 


Chap.  V.]  Ancient  English  Tenubes.  165 

c 

guished  from  matrimony),  which  in  its  feodal  sense  signifies  the  power 
which  the  lord  or  guardian  in  chivalry  had  of  disposing  of  his  infant 
ward  in  matrimony.  [70]  For  while  the  infant  was  in  ward  the  guardian 
had  the  power  of  tendering  him  or  her  a  suitable  match,  without  dis- 
.paragement  or  inequality,  which  if  the  infants  refused  they  forfeited  the 
value  of  the  marriage  {valorem  maritagii)  to  their  guardian, — that' is, 
so  much  as  a  jury  would  assess,  or  any  one  would  bona  fide'i  give  to  the 
guardian  for  such  an  alliance.  And  if  the  infants  married  themselves 
without  the  guardian's  consent,  they  forfeited  double  the  value  {duplicem 
valorem  maritagii). 

6.  Another  attendant  or  consequence  of  tenure  by  knight-service  was 
that  of  fines  due  to  the  lord  for  every  alienation,  whenever  the  tenant 
had  occasion  to  make  over  his  land  to  another.  [71]  This  depended  on 
the  nature  of  the  feodal  connection,  it  not  being  reasonable  or  allowed, 
as  we  have  before  seen,  that  a  feudatory  should  transfer  his  lord's  gift 
to  another,  and  substitute  a  new  tenant  to  do  the  service  in  his  own 
stead,  without  the  consent  of  the  lord;  and  as  the  feodal  obligation  was 
considered  as  reciprocal,  the  lord  also  could  not  alienate  his  seignory 
without  the  consent  of  his  tenant,  which  consent  of  his  was  called  an 
attornment.  [72]  This  restraint  upon  the  lords  soon  wore  away;  that 
upon  the  tenants  continued  longer.  For  when  everything  came  in  pro- 
cess of  time  to  be  bought  and  sold,  the  lo^-ds  would  not  grant  a  license 
to  their  tenants  to  aliene  without  a  fine  being  paid,  apprehending  that 
if  it  was  reasonable  for  the  heir  to  pay  a  fine  or  relief  on  the  renovation 
of  his  paternal  estate,  it  was  more  reasonable  that  a  stranger  should 
make  the  same  acknowledgment  on  his  admission  to  a  newly  purchased 
feud.  With  us  in  England  these  fines  seem  only  to  have  been  exacted 
from  the  king's  tenants  in  capite,*  who  were  never  able  to  aliene  without 
a  license;  but  as  to  common  persons,  they  were  at  liberty,  by  Magna  Carta 
and  the  statute  of  quia  emptores^  (if  not  earlier),  to  aliene  the  whole 
of  their  estate,  to  be  holden  of  the  same  lord  as  they  themselves  held 
it  of  before.® 

3.  In  good  faith.  Matild   his   eldest   daughter;    and   Si- 

4.  In  chief.  mon  de  Montford  gave  the  same  king 

5.  Because  purchasers.  10,000  marks  to  have  the  custody  of 

6.  What  fruitful  sources  of  revenue  the  lands  and  heir  of  Gilbert  de  Un- 
these  wardsliips  and  marriages  of  the  franville,  with  the  heir's  marriage,  a 
tenants,  who  held  lands  by  knight's  sum  equivalent  to  a  hundred  thou- 
serviee,  were  to  the  crown,  will  ap-  sand  pounds  at  present.''  In  ihis  case 
pear  from  the  two  following  instances,  the  estate  must  have  been  large,  the 
collected  among  others  by  Lord  Lyttle-  minor  young,  and  the  alliance  honour- 
ton,  Hist.  Hen.  II.,  2  vol.  296.  "  John  able.  For,  as  Mr.  Hargrave  informs 
earl  of  Lincoln  gave  Henry  the  Third  us,  who  has  well  described  this  spe- 
3000  marks  to  have  the  marriage  of  cies  of  guardianship,  "  the  guardian 
Hichard  de  Clare,  for  the  benefit  of  in  chivalry  was  not  accountable  for 


ICG 


Ancient  English  Tenfres. 


[Book  TI. 


7.  The  last  consequence  of  tenure  in  chivalry  was  escheat,  which  is 
the  determination  of  the  tenure  or  dissolution  of  the  mutual  bond  be- 
tween the  lord  and  tenant  from  the  extinction  of  the  blood  of  the  latter 
by  either  natural  or  civil  means;  if  he  died  without  heirs  of  his  blood, 
or  if  his  blood  was  corrupted  and  stained  by  commission  of  treason 
or  'felony,  whereby  every  inheritable  quality  was  entirely  blotted  out 
and  abolished.  [73]  In  such  cases  the  lands  escheated,  or  fell  back  to 
the  lord  of  the  fee;  that  is,  the  tenure  was  determined  by  breach  of  the 
original  condition  expressed  or  implied  in  the  feodal  donation.^ 

The  description  here  given  is  that  of  a  knight-service  proper,  which 
was  to  attend  the  king  in  his  wars.  There  were  also  some  other  species 
of  knight-service,  so  called,  though  improperly,  because  the  service  or 
rerider  was  of  a  free  and  honorable  nature,  and  equally  uncertain  as  to 
the  time  of  rendering  as  that  of  knight-service  proper,  and  because  they 
were  attended  with  similar  fruits  and  consequences.  Such  was  the  tenure 
by  grand  serjeanty  {per  magnum  servitium),^  whereby  the  tenant  was 
bound,  instead  of  serving  the  king  generally  in  his  wars,  to  do  some 
special  honorary  service  to  the  king  in  person,  as  to  carry  his  banner, 
his  sword,  or  the  like,  or  to  be  his  butler,  champion,  or  other  officer  at 


tiie  profits  made  of  the  infant's  lands, 
during  the  wardship,  but  received 
them  for  his  own  private  emolument, 
subject  only  to  tlic  bare  maintenance 
of  tiie  infant.  And  this  guardianship, 
being  deemed  more  an  interest  for  tlie 
profit  of  the  guardian,  than  a  trust 
for  the  benefit  of  the  ward,  was  sale- 
able and  transferable,  lilce  the  ordi- 
nary subjects  of  property,  to  the  best 
bidder;  and  if  not  disposed  of,  was 
transmissible  to  the  lord's  personal 
representatives.  Thus  tlie  custody  of 
the  infant's  person,  as  well  as  the 
care  of  his  estate,  might  devolve  upon 
the  most  perfect  stranger  to  the  in- 
fant; one  prompted  by  every  pecuni- 
ary motive  to  abuse  the  delicate  and 
important  trust  of  education,  with- 
out any. ties  of  blood  or  regard  to 
ooimteract  the  temptations  of  inter- 
est, or  any  sulficient  authority  to  re- 
strain hira  from  yielding  to  their  in- 
fluence. Co.  Litt.  88,  n.  11.  One 
cannot  read  this  without  astonish- 
ment, that  such  should  continue  to  be 


tiie  condition  of  tiie  country  till  tlie 
j'ear  1660,  which,  from  the  exterm- 
ination of  tliese  feudal  oppressions, 
ouglit  to  be  regarded  as  a  memorable 
sera  in  the  liistory  of  our  law  and 
liberty. 

7.  By  tiie  statute  of  54  Geo.  III., 
c.  145,  it  is  enacted,  tliat  no  attainder 
for  felony  (after  tlie  passing  of  the 
act),  except  in  cases  of  liigli  treason, 
petit  treason,  or  murder,  shall  extend 
to  the  disinheriting  of  any  heir,  or  to 
the  prejudice  of  the  right  or  title  of 
any  other  person  than  the  offender, 
during  his  natural  life  only;  and  that 
it  shall  be  lawful  to  the  person  to 
whom  the  right  or  interest  of  or  in 
any  lands,  tenements,  or  heredita- 
ments, after  the  death  of  such  of- 
fender, would  have  appertained,  if  no 
such  attainder  had  been,  to  enter  in- 
to the  same.  See  U.  S.  Const.,  art. 
3,  sec.  3,  cl.  2,  and  the  conatitutioas 
of  the  several  states. 

8.  By  great  service.  ; 


Ckap.  v.]  Ancient  English  Tenures.  167 

his  coronation.  Tenure  by  cornag'e,  which  was  to  wind  a  horn  when  the 
Scots  or  other  enemies  entered  the  land,  in  order  to  warn  the  king's 
subjects,  was  (like  other  services  of  the  same  nature)  a  species  of  grand 
serjeanty.  [74] 

These  services,  both  of  chivalry  and  grand  serjeanty,  were  all  per- 
sonal and  uncertain  as  to  their  quantity  or  duration.  But  the  personal 
attendance  in  knight-service  growing  troublesome  and  inconvenient  in 
many  respects,  the  tenants  found  means  of  compounding  for  it  by  first 
sending  others  in  their  stead,  and  in  process  of  time  making  a  pecuniary 
satisfaction  to  the  lords  in  lieu  of  it.  This  pecuniary  satisfaction  at  last 
<;ame  to  be  levied  by  assessments,  at  so  much  for  every  knight's  fee, 
and  therefore  this  kind  of  tenure  was  called  scutagium  in  Latin,  or 
servitium  scuti,^  senium  being  then  a  well-known  denomination  for  money. 
And,  in  like  manner,  it  was  called  in  our  Norman-French  escuage,  being 
indeed  a  pecuniary  instead  of  a  military  service.  The  first  time  this  ap- 
pears to  have  been  taken  was  in  the  5  Hen.  II.,  on  account  of  his  ex- 
pedition to  Toulouse,  but  it  soon  came  to  be  so  universal  that  personal 
attendance  fell  quite  into  disuse.  Hence  we  find  in  our  ancient  his- 
tories that  from  this  period,  when  our  kings  went  to  war,  they  levied 
scutages  on  their  tenants — that  is,  on  all  the  landholders  of  the  king- 
dom— to  defray  their  expenses  and  to  hire  troops;  and  these  assessments 
in  the  time  of  Hen.  II.  seem  to  have  been  made  arbitrarily  and  at  the 
king's  pleasure, — which  prerogative  being  greatly  abused  by  his  suc- 
cessors, it  became  matter  of  national  clamor,  and  King  John  was  obliged 
to  consent  by  his  Magna  Carta  that  no  scutage  should  be  imposed  with- 
out consent  of  parliament. 

At  length  the  military  tenures,  with  all  their  heavy  ap- 
pendages (having  during  the  usurpation  been  discon- 
tinued), were  destroyed  at  one  blow  by  the  statute  12  Car. 
II.  c.  24  [1660],  which  enacts  "  that  the  court  of  wards  and 
liveries,  and  all  wardships,  liveries,  primer  seisins,  and 
ousterlemains,  values,  and  forfeitures  of  marriage,  by  rea- 
son of  any  tenure  of  the  king  or  others,  be  totally  taken 
away.  And  that  all  fines  for  alienation,  tenures  by  homage, 
knight-service,  and  escuage,  and  also  aids  for  marrying  the 
daughter  or  knighting  the  son,  and  all  tenures  of  the  king 
in  capite,  be  likewise  taken  away.  And  that  all  sorts  of 
tenures,  held  of  the  king  or  others,  be  turned  into  free  and 
common  socage,  save  only  tenures  in  frankalmoign,  copy- 
liolds,  and  the  honorary  services  (without  the  slavish  part) 
of  grand  serjeanty." 

8.  Service  of  money. 


1G8  Modern  English  Tenukes.  [Book  II. 

CHAPTEK  VI. 

OF    THE    MODERN    ENGLISH    TENURES. 

Although,  by  the  means  that  were  mentioned  in  the  pre- 
ceding chapter,  the  oppressive  or  military  part  of  the 
feodal  constitution  itself  was  happily  done  away,  yet  we 
are  not  to  imagine  that  the  constitution  itself  was  utterly 
laid  aside  and  a  new  one  introduced  in  its  room,  since  by 
the  statute  12  Car.  II.  the  tenures  of  socage  and  frankal- 
moign, the  honorary  services  of  grand  serjeanty,  and  the 
tenure  by  copy  of  court  roll  Avere  reserved,  —  nay,  all  ten- 
ures in  general,  except  frankalmoign,  grand  serjeanty,  and 
copyhold,  were  reduced  to  one  general  species  of  tenure, 
then  well  known  and  subsisting,  called  free  and  common 
socage. '[78] 

The  military  tenure,  or  that  by  knight-service,  consisted 
of  what  were  reputed  the  most  free  and  honorable  services^ 
but  which  in  their  nature  were  unavoidably  uncertain  in 
respect  to  the  time  of  their  performance.  The  second 
species  of  tenure,  or  frec-socagc,  consisted  also  of  free  and 
honorable  services,  but  such  as  were  liquidated  and  reduced 
to  an  absolute  certainty.  And  this  tenure  not  only  subsists 
to  this  day,  but  has  in  a  manner  absorbed  and  swallowed 
up  (since  the  statute  of  Charles  II.)  almost  every  other 
species  of  tenure.     And  to  this  we  are  next  to  proceed.  [79] 

n.  Socage,  in  its  most  general  and  extensive  significa- 
tion, seems  to  denote  a  tenure  by  any  certain  and  determi- 
nate service.  And  in  this  sense  it  is  by  our  ancient  writers 
consequently  put  in  opposition  to  chivalry,  or  knight-ser- 
vice, where  the  render  was  precarious  and  uncertain.^ 

Socage  is  of  two  sorts:  free-socage,  where  the  services 
are  not  only  certain  but  honorable,  and  viUein-socage,  where 
the  services,  though  certain,  are  of  a  baser  nature. 

As  the  grand  criterion  and  distinguishing  mark  of  this 
species  of  tenure  [free  and  common  socage]  are  the  having- 

1.  See  ante,  p.  *52,  note. 


Chap.  VI.]  Modern  English  Tenures.  169 

its  renders  or  services  ascertained,  it  will  include  under  it 
all  other  methods  of  holding  free  lands  by  certain  and  in- 
variable rents  and  duties,  and,  in  particular,  petit  sergeanty, 
tenure  in  burgage,  and  gavelldnd.  [81] 

Petit  serjeanty  bears  a  groat  resemblance  to  grand  serjeanty;  for  as 
the  one  is  a  personal  service,  so  the  other  is  a  rent  or  render,  both  tend- 
ing to  some  purpose  relative  to  the  king's  person.  [82]  Petit  serjeanty, 
as  defined  by  Littleton,  consists  in  holding  lands  of  the  king  by  the  ser- 
vice of  rendering  to  him  annually  some  small  implement  of  war,  as  a 
bow,  a  sword,  a  lance,  an  arrow,  or  the  like. 

Tenure  in  Burgage  is  described  by  Glanvil,  and  is  expressly  said  by 
Littleton  to  be  but  tenure  in  socage:  and  it  is  where  the  king  or  other 
person  is  lord  of  an  ancient  borough  in  which  the  tenements  are  held 
by  a  rent  certain.  It  is  indeed  only  a  kind  of  town  socage,  as  common 
socage,  by  which  other  lands  are  holden,  is  usually  of  a  rural  nature. 
A  bprough,  as  we  have  formerly  seen,  is  usually  distinguished  from  other 
towns  by  the  right  of  sending  members  to  parliament,  and,  where  the 
Tight  of  election  is  by  burgage  tenure,  that  alone  is  a  proof  of  the  anti- 
quity of  the  borough.  Tenure  in  burgage,  therefore,  or  burgage  tenure, 
is  where  houses,  or  lands  which  were  formerly  the  scite  of  houses,  in 
an  ancient  borough  are  held  of  some  lord  in  common  socage  by  a  certain 
established  rent.  The  free  socage  in  which  these  tenements  are  held 
seems  to  be  plainly  a  remnant  of  Saxon  liberty,  which  may  also  account 
for  the  great  variety  of  customs  affecting  many  of  these  tenements  so 
held  in  ancient  burgage,  the  principal  and  most  remarkable  of  which 
is  that  called  Borough  English,  so  named  in  contradistinction,  as  it  were, 
to  the  Norman  customs,  viz.,  that  the  youngest  son,  and  not  the  eldest, 
succeeds  to  the  burgage  tenement  on  the  death  of  his  father.  [83]  Other 
special  customs  there  are  in  different  burgage  tenures,  as  that,  in  some, 
the  wife  shall  be  endowed  of  all  her  husband's  tenements,  and  not  of  the 
third  part  only,  as  at  the  common  law;  and  that,  in  others,  a  man  might 
dispose  of  his  tenements  by  will,  which  in  general  was  not  permitted 
after  the  Conquest  till  the  reign  of  Henry  VIIL,  though  in  the  Saxon 
times  it  was  allowable.  [84] 

The  distinguished  properties  of  tenure  in  gavelkind  [which  prevails 
principally  in  Kent]  are  various;  some  of  the  principal  are  these:  1. 
The  tenant  is  of  age  sufficient  to  aliene  his  estate  by  feoffment  at  the 
age  of  fifteen.  2.  The  estate  does  not  escheat  in  case  of  an  attainder 
end  execution  for  felony,  their  maxim  being  "the  father  to  the  bough, 
the  son  to  the  plough."  3.  In  most  places  he  had  a  power  of  devising 
lands  by  will  before  the  statute  for  that  purpose  was  made.  4.  The  lands 
descend,  not  to  the  eldest,  youngest,  or  any  one  son  only,  but  to  all  the 
sons  together,  which  was  indeed  anciently  the  most  usual  course  of 
descent  all  over  England,  though  in  particular  places  particular  customs 
prevailed.  [85] 


170  Modern  English  Tenures.  [Book  II. 

Having  thus  distributed  and  distinguished  the  several  species  of  tenure 
in  free-socage,  I  proceed  next  to  show  that  this  also  partakes  very 
strongly  of  the  feodal  nature.  The  tokens  of  their  feodal  original  will 
evidently  appear  from  a  short  comparison  of  the  incidents  and  conse*^ 
ynences  of  socage  tenure  yyitb  those  of  tenure  In  chiralrjr.  [86] 

1.  In  the  first  place,  then,  both  were  held  of  superior  lords:  one  of  the 
king,  either  immediately  or  as  lord  paramount,  and  (in  the  latter  case) 
of  a  subject  or  mesne  lord  between  the  king  and  his  tenant. 

2.  Both  were  subject  to  the  feodal  return,  render,  rent,  or  service  of 
some  sort  or  other,  which  arose  from  a  supposition  of  an  original  grant 
from  the  lord  to  the  tenant.  In  the  military,  or  more  proper  feud,  this 
was  from  its  nature  uncertain;  in  socage,  which  was  a  feud  of  the  im- 
proper kind,  it  was  certain,  fixed,  and  determinate  (though  perhaps  noth* 
ing  more  than  bare  fealty),  and  so  continues  to  this  day. 

3.  Both  were,  from  their  constitution,  universally  subject  (over  and 
above  all  other  renders)  to  the  oath  of  fealty,  or  mutual  bond  of  obliga- 
tion between  the  lord  and  tenant. 

4.  The  tenure  in  socage  was  subject  of  common  right  to  aids  for  knight- 
ing the  son  and  marrying  the  eldest  daughter,  [87] 

5.  Relief  is  due  upon  socage  tenure  as  well  as  upon  tenure  in  chivalry^ 
but  the  manner  of  taking  it  is  very  different.  The  relief  on  a  knight's 
fee  was  5^,  or  one  quarter  of  the  supposed  value  of  the  land;  but  a 
scoage  relief  is  one  year's  rent  or  render,  payable  by  the  tenant  to  the 
lord,  be  the  same  either  great  or  small.  Reliefs  in  knight-service  were 
only  payable  if  the  heir  at  the  death  of  his  ancestor  was  of  full  age; 
but  in  socage  they  were  due  even  though  the  heir  was  under  age,  be- 
cause the  lord  has  no  wardship  over  him.  The  statute  of  Charles  II. 
reserves  the  reliefs  incident  to  socage  tenures,  and  therefore,  wherever 
lands  in  fee-simple  are  holden  by  a  rent,  relief  is  still  due  of  common 
right  upon  the  death  of  a  tenant. 

6.  Primer  seisin  was  incident  to  the  king's  socage  tenants  in  capite,^ 
as  well  as  to  those  by  knight-service.  But  tenancy  in  capite  as  well  as 
primer  seisins  are,  among  the  other  feodal  burthens,  entirely  abolished 
by  the  statute. 

7.  Wardship  is  also  incident  to  tenure  in  socage,  but  of  a  nature  very 
different  fron.  that  incident  to  knight-service.  For  if  the  inheritance 
descend  to  an  infant  under  fourteen,  the  wardship  of  him  does  not,  nor 
ever  did,  belong  to  the  lord  of  the  fee,  because  in  this  tenure,  no  military 
or  other  personal  service  being  required,  there  was  no  occasion  for  the 
lord  to  take  the  profits  in  order  to  provide  a  proper  substitute  for  his 
infant  tenant,  but  his  nearest  relation  (to  whom  the  inheritance  cannot 
descend)  shall  be  his  guardian  in  socage,  and  have  the  custody  of  his 
land  and  body  till  he  arrives  at  the  age  of  fourteen.  [88]  At  fourteen 
this  wardship  in  socage  ceases,  and  the  heir  may  oust  the  guardian  and 

2.  In   chief. 


Cjiap.  VI.]  Modern  English  Tenures,  171 

call  him  to  account  for  the  rents  and  profits;  for  at  this  age  the  law 
supposes  him  capable  of  choosing  a  guardian  for  himself.  But  as  the 
"wardship  ceased  at  fourteen,  there  was  this  disadvantage  attending  it, 
that  young  heirs,  being  left  at  so  tender  an  age  to  choose  their  own 
guardians  till  twenty-one,  might  make  an  improvident  choice.  There- 
fore, when  almost  all  the  lands  in  the  kingdom  were  turned  into  socage 
tenures,  the  same  statute,  12  Car.  II,  c.  24,  enacted  that  it  should  be  in 
the  power  of  any  father  by  will  to  appoint  a  guardian  till  his  child 
should  attain  the  age  of  twenty-one;  and  if  no  such  appointment  be 
made,  the  court  of  chancery  will  frequently  interpose  and  name  a  guar- 
dian, to  prevent  an  infant  heir  from  improvidently  exposing  himself  to 
ruin. 

8.  Marriage,  or  the  valor  maritagii^  was  not  in  socage  tenure  any  per- 
quisite or  advantage  to  the  guardian,  but  rather  the  reverse.  For  if  the 
guardian  married  his  ward  under  the  age  of  ffturteen,  he  was  bound  to 
account  to  the  ward  for  the  value  of  the  marriage,  even  though  he  took 
nothing  for  it,  unless  he  married  him  to  advantage.  At  fourteen  years 
of  age  the  ward  might  have  disposed  of  himself  in  marriage  without  any 
consent  of  his  guardian,  till  the  late  act  for  preventing  clandestine  mar- 
riages. [89] 

9.  Fines  for  alienation  were,  I  apprehend,  due  for  lands  holden  of  the 
king  in  capito  by  socage  tenure,  as  well  as  in  case  of  tenure  by  knight- 
service. 

10.  Escheats  are  equally  incident  to  tenure  in  socage  as  they  were  to 
tenure  by  knight-service,  except  only  in  gavelkind  lands,  which  are  (as 
is  before  mentioned)  subject  to  no  escheats  for  felony,  though  they  are 
to  escheats  for  want  of  heirs. 

Thus  much  for  the  two  grand  species  of  tenure,  under  which  almost 
all  the  free  lands  of  the  kingdom  were  holden  till  the  Restoration  in 
1660,  when  the  former  was  abolished  and  sunk  into  the  latter,  so  that  the 
lands  of  both  sorts  are  now  holden  iy  one  universal  tenure  of  free  and 
common  socage. 

The  other  grard  division  of  tenure,  mentioned  by  Bracton, 
as  cited  in  the  preceding  chapter,  is  that  of  villenage,  as 
contradistinguished  from  Ubcrum  tenemcnttim^  or  frank 
tenure.  And  this  he  subdivided  into  two  classes,  'pure  and 
privileged  villenage;  from  whence  have  arisen  two  other 
species  of  our  modern  tenures. 

III.  From  the  tenure  of  pure  villenage  have  sprung  our 
present  copyhold  tenures,  or  tenure  by  copy  of  court  roll  at 
the  will  of  the  lord.* 

3.  Value  of  the  marriage.  4.  Not  applicable  to  this  country. 


172  Modern  English  Tenures.  [Book  II. 

In  order  to  obtain  a  clear  idea  of  this  tenure,  It  will  be  previously 
necessary  to  take  a  short  view  of  the  original  and  nature  of  manors.  [90] 

A  manor,  manerium,  a  manendo,^  because  the  usual  residence  of  the 
owner,  seems  to  have  been  a  district  of  ground  held  by  lords  or  great 
personages,  who  kept  in  their  own  hands  so  much  land  as  was  neces- 
sary for  the  use  of  their  families,  which  were  called  tcrrae  dominicales  or 
demesne  lands,  being  occupied  by  the  lord,  or  dominus  manerii,^  and  his 
servants.  The  other,  or  tenemental,  lands  they  distributed  among  their 
tenants,  which,  from  the  different  modes  of  tenure,  were  distinguished 
by  two  different  names.  First,  book-land,  or  charter-land,  which  was 
held  by  deed  under  certain  rents  and  free-services,  and  in  effect  differed 
nothing  from  the  free-socage  lands;  and  from  hence  have  arisen  most 
of  the  free-hold  tenants  who  hold  of  particular  manors,  and  owe  suit 
and  service  to  the  same.  The  other  species  was  called  folk-land,  which 
was  held  by  no  assurance  In  writing,  but  distributed  among  the  common 
folk  or  people  at  the  pleasure  of  the  lord  and  resumed  at  his  discretion, 
being  indeed  land  held  in  villenage,  which  we  shall  presently  describe 
more  at  large.  The  residue  of  the  manor,  being  uncultivated,  was  termed 
the  lord's  waste,  and  served  for  public  roads  and  for  common  or  pasture 
to  the  lord  and  his  tenants.  Manors  were  formerly  called  baronies,  as 
they  are  still  lordships,  and  each  lord  or  baron  was  empowered  to  hold 
a  domestic  court,  called  the  court-baron,  for  redressing  misdemeanors 
and  nuisances  within  the  manor,  and  settling  disputes  of  property  among 
the  tenants.  This  court  Is  an  inseparable  ingredient  of  every  manor, 
and  if  the  number  of  suitors  should  so  fail  as  not  to  leave  sufficient  to 
make  a  jury  or  homage,  that  is,  two  tenants  at  least,  the  manor  itself 
is  lost.  [91] 

In  the  early  times  of  our  legal  constitution  the  king's  greater  barons, 
who  had  a  large  extent  of  territory  held  under  the  crown,  granted  out 
frequently  smaller  manors  to  inferior  persons  to  be  holden  of  them- 
selves, which  do  therefore  now  continue  to  be  held  under  a  superior 
lord,  who  is  called  in  such  cases  the  lord  paramount  over  all  these 
manors,  and  his  seignory  is  frequently  termed  an  honor,  not  a  manor, 
especially  if  it  hath  belonged  to  an  ancient  feodal  baron,  or  hath  been 
at  any  time  in  the  hands  of  the  crown.  In  imitation  whereof,  these  in- 
ferior lords  began  to  carve  out  and  grant  to  others  still  more  minute 
estates,  to  be  held  as  of  themselves,  and  were  so  proceeding  downwards 
in  infinitum,''  till  the  superior  lords  observed  that  by  this  method  of 
subinfeudation  they  lost  all  their  feodal  profits  of  wardships,  marriages, 
and  escheats,  which  fell  into  the  hands  of  these  mesne,  or  middle  lords, 
who  were  the  immediate  superiors  of  the  terre-tenant,  or  him  who  occu- 
pied the  land;  and  also  that  the  mesne  lords  themselves  were  so  im- 
poverished thereby,  that  they  were  disabled  from  performing  their  ser- 

6.  From  remaining.  7.  In  infinity. 

6.  Tlie  lord  of  the  manor. 


CiiAr.  VI.]  Modern  English  Tenuees.  173 

vices  to  their  own  superiors.  This  occasioned,  first,  that  provision  in 
the  thirty-second  chapter  of  Magna  Carta,  9  Hen.  III.  (which  is  not  to 
be  found  in  the  first  charter  granted  by  that  prince,  nor  in  the  Great 
Charter  of  King  John),  that  no  man  should  either  give  or  sell  his  land 
without  reserving  sufficient  to  answer  the  demand  of  his  lord,  and  after- 
wards the  statute  of  Westm.  3,  or  quia  emptores,*  18  Edw.  1,  c.  1,  which 
directs  that,  upon  all  sales  or  feoffments  of  land,  the  feoffee  shall  hold 
the  same,  not  of  his  immediate  feoffor,  but  of  the  chief  lord  of  the  Jee, 
of  whom  such  feoffor  himself  held  it.  But  these  provisions  not  extend- 
ing to  the  king's  own  tenants  in  capite,^  the  like  law  concerning  them  is 
declared  by  the  statutes  of  prerogativa  regis,i  17  Edw.  II.  c.  6,  and  of  34 
Edw.  Ill,  c.  15,  by  which  last  all  subinfeudations  previous  to  the  reign 
of  King  Edward  I.  were  confirmed,  but  all  subsequent  to  that  period  were 
left  open  to  the  king's  prerogative.  [92]  And  from  hence  it  is  clear 
that  all  manors  existing  at  this  day  must  have  existed  as  early  as  King 
Edward  I.,  for  it  is  essential  to  a  manor  that  there  be  tenants  who  hold 
of  the  lord;  and  by  the  operation  of  these  statutes  no  tenant  in  capite 
since  the  accession  of  that  prince,  and  no  tenant  of  a  common  lord  since 
the  statute  of  quia  cmptorcs,  could  create  any  new  tenants  to  hold  of  him- 
Eelf. 

Now  with  regard  to  the  folk-land,  or  estates  held  in  villenage,  this 
was  a  species  of  tenure  neither  strictly  feodal,  Norman,  or  Sexon,  but 
mixed  and  compounded  of  them  all;  and  which  also,  on  account  of  the 
heriots  that  usually  attend  it,  may  seem  to  have  somewhat  Danish  in 
its  composition.  Under  the  Saxon  government  there  were,  as  Sir  Wil- 
liam Temple  speaks  a  sort  of  people  in  a  condition  of  downright  servi- 
tude, used  and  employed  in  the  most  servile  works,  and  belonging,  both 
they,  their  children  and  effects,  to  the  lord  of  the  soil,  like  the  rest  of 
the  cattle  or  stock  upon  it.  These  seem  to  have  been  those  who  held 
what  was  called  the  folk-land,  from  which  they  were  rmovable  at  the 
lord's  pleasure.  On  the  arrival  of  the  Normans  here,  it  seems  not  im- 
probable that  they  who  were  strangers  to  any  other  than  a  feodal  state 
might  give  some  sparks  of  enfranchisement  to  such  wretched  persons 
as  fell  to  their  share  by  admitting  them  as  well  as  others  to  the  oath 
of  fealty,  which  conferred  a  right  of  protection  and  raised  the  tenant 
to  a  kind  of  estate  superior  to  downright  slavery,  but  inferior  to  every 
other  condition.  This  they  called  villenage  and  the  tenants  villeins, 
either  from  the  word  vUis,  or  else,  as  Sir  Edward  Coke  tells  us,  a  mlla, 
because  they  lived  chiefiy  in  villages  and  were  employed  in  rustic 
works  of  the  most  sordid  kind,  resembling  the  Spartan  helotes,  to  whom 
alone  the  culture  of  the  lands  was  consigned, — their  rugged  masters, 
like  our  northern  ancestors,  esteeming  war  the  only  honorable  employ- 
ment of  mankind. 

8.  Because  purchasers.  1.  The  king's  prerogative. 

9.  In  cliief. 


174  Modern  English  Tenures.  [Book  II. 

These  villeins,  belonging  principally  to  lords  of  manors,  were  either 
Yilleins  regrardant,  that  is,  annexed  to  the  manor  or  land,  or  else  they 
were  in  gross,  or  at  large,  that  is,  annexed  to  the  person  of  the  lord 
and  transferable  by  deed  from  one  owner  to  another.  [93]  They  could 
not  leave  their  lord  without  his  permission,  but  if  they  ran  away  or 
were  purloined  from  him,  might  be  claimed  and  recovered  by  action, 
like  beasts  or  other  chattels.  They  held,  indeed,  small  portions  of  land 
b^  way  of  sustaining  themselves  and  families,  but  it  was  at  the  mere 
will  of  the  lord,  who  might  dispossess  them  whenever  he  pleased;  and 
It  was  upon  villein  services,  that  is,  to  carry  out  dung,  to  hedge  and 
ditch  the  lord's  demesnes,  and  any  other  the  meanest  offices.  And  their 
services  were  not  only  base,  but  uncertain  both  as  to  their  time  and 
quantity.  A  villein  could  acquire  no  property  eitlier  in  lands  or  goods, 
but,  if  he  purchased  either,  the  lord  might  enter  upon  them,  oust  the 
villein,  and  seize  them  to  his  own  use,  unless  he  contrived  to  dispose 
of  them  again  before  the  lord  had  seized  them,  for  the  lord  had  then 
lost  his  opportunity. 

In  many  places  also  a  fine  was  payable  to  the  lord  if  the  villein  pre- 
sumed to  marry  his  daughter  to  any  one  without  leave  from  the  lord, 
and,  by  the  common  law,  the  lord  might  also  bring  an  action  against 
the  husband  for  damages  in  thus  purloining  his  property.  For  the 
children  of  villeins  were  also  in  the  same  state  of  bondage  with  their 
parents,  whence  they  were  called  in  Latin  natit-i,  w^hich  gave  rise  to  the 
female  appellation  of  a  villein,  who  was  called  a  neife.  [94]  In  case 
of  a  marriage  between  a  freeman  and  a  neife,  or  a  villein  and  a  free- 
woman,  the  issue  followed  the  condition  of  the  father,  being  free  if  he 
was  free,  and  villein  if  he  was  villein,  contrary  to  the  maxim  of  the 
civil  law,  that  partus  sequitur  ventrem.  But  no  bastard  could  be  born  a 
villein,  because  of  another  maxim  in  our  law,  he  is  nullius  filius;-  and 
as  he  can  gain  nothing  by  inheritance,  it  were  hard  that  he  should  lose 
his  natural  freedom  by  it.  The  law,  however,  protected  the  persons  of 
villeins,  as  the  king's  subjects,  against  atrocious  injuries  of  the  lord. 
For  he  might  not  kill  or  maim  his  villein,* though  he  might  beat  him  with 
impunity,  since  the  villein  had  no  action  or  remedy  at  law  against  his 
lord,  but  in  case  of  the  murder  of  his  ancestor  or  the  maim  of  his  own 
person.  Neifes,  indeed,  had  also  an  appeal  of  rape  in  case  the  lord 
violated  them  by  force. 

Villeins  might  be  enfranchised  by  manumission,  which  is  either  ex- 
press or  implied;  express,  as  where  a  man  granted  to  the  villein  a  deed 
of  manumission;  implied,  as  where  a  man  bound  himself  in  a  bond  to 
his  villein  for  a  sum  of  money,  granted  him  an  annuity  by  deed,  or 
gave  him  an  estate  in  fee  for  life  or  years.  For  this  was  dealing  with 
his  villein  on  the  footing  of  a  freeman;  it  was  in  some  of  the  instances 
giving  him  an  action  against  his  lord,  and  in  others  vesting  in  him  an 

2.  The  son  of  no  one. 


Chap.  VI.]  Modekn  English  Tenures.  175 

ownership  entirely  inconsistent  with  his  former  state  of  bondage.  So 
also  if  the  lord  brought  an  action  against  his  villein,  this  enfranchised 
him;  for  as  the  lord  might  have  a  short  remedy  against  his  villein  by 
seizing  his  goods  (which  was  more  than  equivalent  to  any  damages  he 
could  recover),  the  law,  which  is  always  ready  to  catch  at  anything 
in  favor  of  liberty,  presumed  that  by  bringing  this  action  he  meant  to 
set  his  villein  on  the  same  footing  with  himself,  and  therefore  held  it  an 
implied  manumission.  But  in  case  the  lord  indicted  him  for  felony  it 
was  otherwise,  for  the  lord  could  not  inflict  a  capital  punishment  on 
his  villein  without  calling  in  the  assistance  of  the  law.  [95] 

Villeins  by  these  and  many  other  means  in  process  of  time  gained 
considerable  ground  on  their  lords,  and  in  particular  strengthened  the 
tenure  of  their  estates  to  that  degree  that  they  came  to  have  in  them 
an  interest  in  many  places  full  as  good,  in  others  better  than  their 
lords.  For  the  good-nature  and  benevolence  of  many  lords  of  manors 
having  time  out  of  mind  permitted  their  villeins  and  their  children  to 
enjoy  their  possessions  without  interruption  in  a  regular  course  of 
descent,  the  common  law,  of  which  custom  is  the  life,  now  gave  them 
title  to  prescribe  against  their  lords,  and,  on  performance  of  the  same 
services,  to  hold  their  lands  in  spite  of  any  determination  of  the  lord's 
will.  For  though  in  general  they  are  still  said  to  hold  their  estates  at 
the  will  of  the  lord,  yet  it  is  such  a  will  as  is  agreeable  to  the  custom 
of  the  manor,  which  customs  are  preserved  and  evidenced  by  the  rolls 
of  the  several  courts  baron  in  which  they  are  entered,  or  kept  on  foot 
by  the  constant  immemorial  usage  of  the  several  manors  in  which  the 
lands  lie. 

And  as  such  tenants  had  nothing  to  show  for  their  estates 
but  these  customs  and  admissions  in  pursuance  of  them 
entered  on  those  rolls,  or  the  copies  of  such  entries  wit- 
nessed by  the  steward,  they  now^  began  to  be  called  tenants 
by  copy  of  court-roll,  and  their  tenure  itself  a  copyhold. 

Thus  copyhold  tenures,  although  very  meanly  descended, 
yet  come  of  an  ancient  house,  for  from  what  has  been 
premised  it  appears  that  copyholders  are  in  truth  no  other 
but  villeins  who,  by  a  long  series  of  immemorial  encroach- 
ments on  the  lord,  have  at  last  established  a  customary 
right  to  those  estates  which  before  were  held  absolutely  at 
the  lord's  will.^ 

Which  affords  a  very  substantial  reason  for  the  great  variety  of  cus- 
toms that  prevail  in  different  manors  with  regard  both  to  the  descent 

3.  Nothing    of    the    sort    in    this  country. 


176  Modern  English  Tenures.  [Book  II. 

of  the  estates  and  the  privileges  belonging  to  the  tenants.  [96]  And 
these  encroachments  grew  to  be  so  universal  that  when  tenure  in  villen- 
age  was  virtually  abolished  (though  copyholds  were  reserved)  by  the 
statute  of  Charles  II.,  there  was  hardly  a  pure  villein  left  in  the  nation. 

As  a  further  consequence  of  what  has  been  premised,  we 
may  collect  these  two  main  principles,  which  are  held  to  be 
the  supporters  of  the  copyhold  tenure,  and  without  which 
it  cannot  exist:  1.  That  the  lands  be  parcel  of  and  situate 
within  that  manor  under  which  it  is  held  [97] ;  2.  That  they 
have  been  demised,  or  demisable,  by  copy  of  court-roll  im- 
memorially.  For  immemorial  custom  is  the  life  of  all  ten- 
ures by  copy,  so  that  no  new  copyhold  can,  strictly  speak- 
ing, be  granted  at  this  day. 

In  some  manors,  where  the  custom  hath  been  to  permit  the  heir  to 
succeed  the  ancestor  in  his  tenure,  the  estates  are  styled  copyholds  of 
inheritance;  in  others,  where  the  lords  have  been  more  vigilant  to  main- 
tain their  rights,  they  remain  copyholds  for  life  only.  For  the  custom 
of  the  manor  has  in  both  cases  so  far  superseded  the  will  of  the  lord, 
that,  provided  the  services  be  performed  or  stipulated  for  by  fealty,  he 
cannot,  in  the  first  instance,  refuse  to  admit  the  heir  of  his  tenant  upon 
his  death,  nor,  in  the  second,  can  he  remove  his  present  tenant  so  long 
as  he  lives,  though  he  holds  nominally  by  the  precarious  tenure  of  his 
lord's  will. 

The  fruits  and  appendages  of  a  copyhold  tenure  that  it  hath  in  com- 
mon with  free  tenures,  are  fealty,  services  (as  well  in  rents  as  other- 
wise', reliefs,  and  escheats.  The  two  latter  belong  only  to  copyholds  of 
inheritance,  the  former  to  those  for  life  also.  But  besides  these,  copy- 
holds have  also  heriots,  wardship,  and  fines.  Heriots  are  a  render  of  the 
best  beast  or  other  good  (as  the  custom  may  be)  to  the  lord  on  the  death 
of  the  tenant.  These  are  incident  to  both  species  of  copyhold,  but 
wardship  and  fines  to  those  of  inheritance  only.  Wardship,  in  copyhold 
estates,  partakes  both  of  that  in  chivalry  and  that  in  socage.  Like  that 
in  chivalry,  the  lord  is  the  legal  guardian,  who  usually  assigns  some 
relation  of  the  infant  tenant  to  act  in  his  stead  and  he,  like  the  guardian 
in  socage,  is  accountable  to  his  ward  for  the  profits.  [98]  Of  fines,  some 
are  in  the  nature  of  primer  seisins  due  on  the  death  of  each  tenant, 
others  are  mere  fines  for  the  alienation  of  the  lands.  In  some  manor? 
only  one  of  these  sorts  can  be  demanded,  in  some  both,  and  in  others 
neither.  They  are  sometimes  arbitrary  and  at  the  will  of  the  lord, 
sometimes  fixed  by  custom;  but  even  when  arbitrary,  the  courts  ot 
law,  in  favor  of  the  liberty  of  copyholds,  have  tied  them  down  to  be 
reasonable  in  their  extent. 


Chap.  VI.]  Modern  English  Tenures.  177 

Thus  much  for  the  ancient  tenure  of  pure  villenage,  and  the  modern 
one  of  copyhold  at  the  will  of  the  lord,  which  is  lineally  descended  from  it. 

IV.  There  is  yet  a  fourth  species  of  tenure,  described  by 
Bracton  under  the  name  sometimes  of  privileged  villenage, 
and  sometimes  of  villein-socage.  This,  he  tells  us,  is  such 
as  has  been  held  of  the  kings  of  England  from  the  Conquest 
downwards,  —  that  the  tenants  herein  "  villa na  faciunt 
serviUa,  sed  ccrta  ct  determinata/'*  that  they  cannot  aliene 
or  transfer  their  tenements  by  grant  or  feoffment  any  more 
than  pure  villeins  can,  but  must  surrender  them  to  the  lord 
or  his  steward,  to  be  again  granted  out  and  held  in  villen- 
age. [99]  And  from  these  circumstances  we  may  collect 
that  what  he  here  describes  is  no  other  than  an  exalted 
species  of  copyhold  subsisting  at  this  day,  viz., 'the  tenure 
in  ancient  demesne,  to  which,  as  partaking  of  the  baseness 
of  villenage  in  the  nature  of  its  services  and  the  freedom  of 
socage  in  their  certainty,  he  has  therefore  given  a  name 
compounded  out  of  both,  and  calls  it  viUanum  socagium.^ 

Ancient  demesne  consists  of  those  lands  or  manors  which, 
though  now  perhaps  granted  out  to  private  subjects,  were 
actually  in  the  hands  of  the  crown  in  the  time  of  Edward 
the  Confessor  or  William  the  Conqueror,  and  so  appear  to 
have  been  by  the  great  survey  in  the  exchequer  called 
domesday-book.  Lands  holden  by  this  tenure  [ancient 
demesne]  are  therefore  a  species  of  copyhold,  and  as  such 
preserved  and  exempted  from  the  operation  of  the  statute 
of  Charles  II.  [100]  Yet  they  differ  from  common  copy- 
holds, principally  in  the  privileges  before  mentioned  [i.  e., 
that  their  services  were  fixed  and  determinate,  that  they 
could  not  be  compelled,  like  pure  villeins,  to  relinquish  their 
tenements  at  the  lord's  will  or  to  hold  them  against  their 
own,  and  that  they  had  an  interest  equivalent  to  a  freehold], 
as  also  they  differ  from  freeholders  by  one  especial  mark 
and  tincture  of  villenage,  noted  by  Bracton  and  remaining 
to  this  day,  viz»,  that  they  cannot  be  conveyed  from  man  to 
man  by  the  general  common  law  conveyances  of  feoffment 

4.  They    perform  '  villein    services,  5.  Villein  socage, 

but  certain  and  determined. 

12 


178 


Modern  English  Tenures. 


[Book  IT. 


and  the  rest,  but  must  pass  by  surrender  to  the  lord  or  his 
steward  in  the  manner  of  common  copyholds:  yet  with  this 
distinction,  that  in  the  surrender  of  these  lands  in  ancient 
demesne,  it  is  not  used  to  say,  "  to  hold  at  the  icill  of  the 
lord,'-  in  their  copies,  but  only,  "  to  hold  according  to  the 
custom  of  the  manor."  [101] 

Upon  the  whole  it  appears  that  whatever  changes  and 
alterations  tenures  have  in  process  of  time  undergone,  from 
the  Saxon  era  to  12  Car.  II.,  all  lay  tenures  are  now  in  effect 
reduced  to  two  species:  free  tenure  in  common  socage,  and 
hase  tenure  by  copy  of  court-roll.^ 

There  is  still  one  other  species  of  tenure  reserved  by  the  statute  of 
Charles  II.  which  is  of  a  spiritual  nature,  and  called  the  tenure  in  frank- 
almoign. 


V,  Tenure  in  frankalmoign,  in  libera  eleemosyna  or  free  alms,  is  that 
M  hereby  a  religious  corporation,  aggregate  or  sole,  holdeth  lands  of  the 
donor  to  them  and  their  successors  forever.  The  service  which  they 
were  bound  to  render  for  these  lands  was  not  certainly  defined,  but  only 
in  general  to  pray  for  the  soul  of  the  donor  and  his  heirs,  dead  or  alive; 
and  therefore  they  did  no  fealty  (which  is  incident  to  all  other  services 
but  this),  because  this  divine  service  was  of  a  higher  and  more  exalted 
nature.  This  is  the  tenure  by  which  almost  all  the  ancient  monasteries 
and  religious  houses  held  their  lands,  and  by  which  the  parochial  clergy 
and  very  many  ecclesiastical  and  eleemosynary  foundations  hold  them 
at  this  day,  the  nature  of  the  service  being  upon  the  Reformation  altered 
and  made  conformable  to  the  purer  doctrines  of  the  Church  of  Eng- 
land. [102] 


6.  As  before  stated  (ante,  *52, 
note),  ?11  lands  in  this  country  are 
allodial.  Nevertheless  a  Icnowledge  of 
the  feudal  system  is  necessary  to  un- 
derstand the  present  terminology. 
Escheat  seems  to   be  the  only   real 


vestige  of  the  system  that  is  at  pres- 
ent in  active  force  and  this  has  been 
largely  modified  by  statutes.  Consult 
the  local  statutes.  See,  also,  3  Kenb 
Com.,  513. 


Chap.  VIL]     Fkeehold  Estates  of  Inheritance.  '    179 

CHAPTER  YII. 

OF  FREEHOLD  ESTATES  OF  INHERITANCE. 

An  estate  in  lands,  tenements,  and  hereditaments  signij&es 
such  interest  as  the  tenant  has  therein,  so  that  if  a  man 
grants  all  his  estate  in  Dale  to  A  and  his  heirs,  everything 
that  he  can  possibly  grant  shall  pass  thereby.^  [103] 

First,  with  regard  to  the  quantity  of  interest  which  the 
tenant  has  in  the  tenement,  this  is  measured  by  its  duration 
and  extent.  Thus,  either  his  right  of  possession  is  to  sub- 
sist for  an  uncertain  period,  during  his  own  life  or  the  life 
of  another  man,  to  determine  at  his  own  decease  or  to  re- 
main to  his  descendants  after  him;  or  it  is  circumscribed 
within  a  certain  number  of  years,  months,  or  days ;  or,  lastly, 
it  is  infinite  and  unlimited,  being  vested  in  him  and  his 
representatives  forever.  And  this  occasions  the  primary 
division  of  estates  into  such  as  are  freehold  and  such  as  are 
less  than  freelmld.  [104] 

An  estate  of  freehold,  liberum  tenementum,  or  frank- 
tenement,  is  such  an  estate  in  lands  as  is  conveyed  by  livery 
of  seisin,  or  in  tenements  of  any  incorporeal  nature,  by 
what  is  equivalent  thereto.^  And  accordingly  it  is  laid 
down  by  Littleton  that  where  a  freehold  shall  pass,  it  be- 
hooveth  to  have  livery  of  seisin.  As,  therefore,  estates  of 
inheritance  and  estates  for  life  could  not  by  common  law 
be  conveyed  without  livery  of  seisin,  these  are  properly 
estates  of  freehold,  and  as  no  other  estates  are  conveyed 
with  the  same  solemnity,  therefore  no  others  are  properly 
freehold  estates. 

Estates  of  freehold  (thus  understood)  are  either  estates 
of  inheritance,  or  estates  not  of  inheritance.    The  former 

1.  The  word  estate,  does  not  denote  hold ;  but,  though  no  longer  neces- 
the  quantum  (how  much)  of  his  prop-  sary,  it  still,  in  the  absence  of  stat- 
erty;  but  the  extent  and  nature  of  utes  changing  the  rule,  serves  to  de- 
his  interest  therein.  fine  estates  of   freehold   as   those   in 

2.  See  post,  *315.  Livery  of  seisin  which  livery  of  seisin  was  formerly 
is  no  longer  necessary  to  pass  a  free-  necessary. 


1"80  Freehold  Estates  of  Inheritance.       [Book  II. 

are  again  divided  into  inheritances  absolute,  or  fee-simple, 
and  inheritances  limited,  one  species  of  which  we  usually 
call  fee-tail. 

I.  Tenant  in  fee-simple  (or,  as  he  is  frequently  styled, 
tenant  in  fee)  is  he  that  hath  lands,  tenements,  or  heredita- 
ments to  hold  to  him  and  his  heirs  forever,  generally,  abso- 
lutely, and  simply,  without  mentioning  wlwt  heirs,  but  re- 
ferring that  to  his  own  pleasure  or  to  the  disposition  of  the 
law.  The  true  meaning  of  the  word  fee  (focdnm)  is  the 
'  same  with  that  of  feud  or  fief,  and  in  its  original  sense  it  is 
taken  in  contradistinction  to  allodium;  wliioli  latter  the 
writers  on  this  subject  define  to  be  every  man's  own  land 
which  he  possesseth  merely  in  his  own  right,  without  owing 
any  rent  or  service  to  any  superior.  [105]  This  is  property 
in  its  highest  degree,. and  the  owner  thereof  hath  ahsolutum 
et  directum  dominium,^  and  therefore  is  said  to  be  seised 
thereof  absolutely  in  dominico  sno,  in  his  own  demesne. 
But  feodum,  or  fee,  is  that  which  is  held  of  some  superior 
on  condition  of  rendering  him  service,  in  which  superior 
the  ultimate  property  of  the  land  resides.  And  therefore 
Sir  Henry  Spelman  defines  a  feud  or  fee  to  be  the  right 
which  the  vassal  or  tenant  hath  in  lands  to  use  the  same 
and  take  the  profits  thereof  to  him  and  his  heirs,  rendering 
to  the  lord  his  due  services,  the  mere  allodial  properti/  of 
the  soil  always  remaining  in  the  lord.  This  allodial  prop- 
erty no  subject  in  England  has,  it  being  a  received,  and  now 
undeniable,  principle  in  the  law  that  all  the  lands  in  Eng- 
land are  holden,  mediately  or  immediately,  of  the  king. 

This  is  the  primary  sense  and  acceptation  of  the  word  fee. 
But  the  doctrine,  '*  that  all  lands  ai^e  holden,"  having  been 
for  so  many  ages  a  fixed  and  undeniable  axiom,  our  English 
lawyers  do  very  rarely  (of  late  years  especially)  use  the 
word  fee  in  this  its  primary  original  sense,  in  contradis- 
tinction to  allodium;  or  absolute  property,  with  which  they 
have  no  concern,  but  generally  use  it  to  express  the  con- 
tinuance or  quantity  of  estate.  [106]     A  fee,  therefore,  in 

3.  Absolute  and  direct  dominion. 


Chap.  VIL]     Freehold  Estates  of  Inheritance.  131 

general,  signifies  an  estate  of  inheritance,  being  the  highest 
and  most  extensive  interest  that  a  man  can  have  in  feud.* 
And  when  the  term  is  used  simply,  without  any  other  ad- 
junct, or  has  the  adjunct  of  simple  annexed  to  it  (as  a  fee, 
or  a  fee-simple),  it  is  used  in  contradistinction  to  a  fee  con- 
ditional at  the  common  law  or  a  fee-tail  by  the  statute,  im- 
porting an  absolute  inheritance,  clear  of  any  condition, 
limitation,  or  restrictions  to  particular  heirs,  but  descend- 
ible to  the  heirs  general,  whether  male  or  female,  lineal  or 
collateral.  And  in  no  other  sense  than  this  is  the  king  said 
to  be  seised  in  fee,  he  being  the  feudatory  of  no  man. 

Taking,  therefore,  fee  for  the  future,  unless  where  other- 
wise explained  in  this  its  secondary  sense,  as  a  state  of  in- 
heritance, it  is  applicable  to  and  may  be  had  in  any  kind 
of  hereditaments,  either  corporeal  or  incorporeal.  But 
there  is  this  distinction  between  the  two  species  of  heredita- 
ments: that  of  a  corporeal  inheritance  a  man  shall  be  said 
to  be  seized  in  his  demesne,  as  of  fee;  of  an  incorporeal  one, 
he  shall  only  be  said  to  be  seized  as  of  fee  and  not  in  his 
demense. 

The  fee-simple,  or  inheritance,  of  lands  and  tenements  is 
generally  vested  and  resides  in  some  person  or  other,  though 
divers  inferior  estates  may  be  carved  out  of  it.  [107]  Yet 
sometimes  the  fee  may  be  in  abeyance,  that  is  (as  the  word 
signifies),  in  expectation,  remembrance,  and  contemplation 
in  law,  there  being  no  person  in  esse^  in  whom  it  can  vest 
and  abide,  though  the  law  considers  it  as  always  potentially 
existing,  and  ready  to  vest  whenever  a  proper  owner  ap- 
pears. Thus,  in  a  grant  to  John  for  life,  and  afterwards 
to  the  heirs  of  Richard,  the  inheritance  is  plainly  neither 
granted  to  John  nor  Richard,  nor  can  it  vest  in  the  heirs  of 
Richard  till  his  death,  nam  nemo  est  haeres  viventis;^  it 
remains,  therefore,  in  waiting  or  abeyance  during  the  life 
of  Richard.^     This  is  like.wise  always  the  case  of  a  parson 

4.  This  term  has  still  the  same  sig-  7.  "  Where  a  remainder  of  inherit- 

nifiiation  in  American  law.  ance  is  limited  in  contingency  by  way 

5    In  being.  of  use  or  by  devise,  the  inheritance  in 

6.  For  no   one  is   heir  of  a   living  the   meantime,   if   not   otherwise   dis- 

person,  •  posed  of,  remains  in  the  grantor  and 


182 


Freehold  Estates  of  Inheritance.       [Book  II. 


of  a  church  who  hath  only  an  estate  therein  for  the  term  of 
liis  life,  and  the  inheritance  remains  in  abeyance.  And 
not  only  the  fee,  but  the  freehold  also  may  be  in  abeyance, 
as,  when  a  parson  dies,  the  freehold  of  his  glebe  is  in  abey- 
ance until  a  successor  be  named,  and  then  it  vests  in  the 
successor.* 

The  word  ' '  heirs  ' '  is  necessary  in  the  grant  or  donation, 
in  order  to  make  a  fee  or  inheritance.^  For  if  land  be  given 
to  a  man  forever,  or  to  him  and  his  assigns  forever,  this 
vests  in  him  but  an  estate  for  life. 
This  rule  is  now  softened  by  many  exceptions.  [108] 
For,  1,  it  does  not  extend  to  devises  by  will,  in  which  a 
more  liberal  construction  is  allow^ed.  And  therefore  by  a 
devise  to  a  man  forever,  or  to  one  and  his  assigns  forever, 
or  to  one  in  fee-simple,  the  devisee  hath  an  estate  of  in- 
heritance; for  the  intention^  of  the  devisor  is  sufficiently 
plain  from  the  words  of  perpetuity  annexed,  though  he 
hath  omitted  the  legal  words  of  inheritance.  But  if  the 
devise  be  to  a  man  and  his  assigns,  without  annexing  words 
of  perpetuity,  there  the  devise  shall  take  only  an  estate  for 


)iis  heirs,  or  in  the  heirs  of  the  tes- 
tator, until  the  contingency  happens 
to  take  it  out  of  them."  Feame, 
Cont.  Rem.,  513,  4th  Ed.  The  above 
example,  therefore,  is  a  contingent  re- 
mainder, considered  farther  on.  See, 
also,  1  Bouvier  Law  Diet.,  Abeyance. 
8.  There  hardly  seems  any  neces- 
sity to  resort  to  abeyance,  or  io  the 
clouds,  to  explain  the  residence  of  the 
inheritance,  or  of  the  freehold.  In 
the  first  case,  the  whole  fee-simple  is 
conveyed  to  a  sole  corporation,  the 
parson  and  his  successors;  but  if  any 
interest  is  not  conveyed,  it  still  re- 
mains in  the  grantor  and  his  heirs, 
to  whom,  upon  the  dissolution  of  the 
corporation,  the  estate  will  revert. 
See  1  book.  484.  And  in  the  second 
case,  the  freehold  seems,  in  fact,  from 
the  moment  of  the  death  of  the  par- 


son, to  rest  and  abide  in  the  succes- 
sor, who  is  brought  into  view  and  no- 
tice by  the  institution  and  induction; 
for  after  induction  he  can  recover  all 
the  rights  of  the  church,  which  ac- 
crued from  the  death  of  the  prede- 
cessor. 

9.  Still  the  rule  in  deeds  of  convey- 
ance in  this  country,  unless  changed 
by  statute.  Consult  the  local  stat- 
utes. See  44  &  45  Vict.,  ch.  41,  sec. 
63. 

1.  In  wills  the  intention  of  the  tes- 
tator shall  prevail,  and  the  general 
intention  controls  the  particular  in- 
tention if  there  is  an  irreconcilable 
conflict  between  them.  See  Schouler 
on  Wills  (1910),  230.  231  and  cases 
cited;  Gardner  on  Wills  (1903),  368 
and  cases  cited. 


Chap.  VIL]     Freehold  Estates  of  Inheritance.  183 

life,  for  it  does  not  appear  that  the  devisor  intended  any 
more.  2.  Neither  does  this  rule  extend  to  fines  or,  re- 
coveries^ considered  as  a  species  of  conveyance;  for  there- 
by an  estate  in  fee  passes  by  act  and  operation  of  law  with- 
out the  word  ' '  heirs, "  as  it  does  also,  for  particular  reasons, 
by  certain  other  methods  of  conveyance,  which  have  relation 
to  a  former  grant  or  estate,  wherein  the  word  ' '  heirs  ' '  was 
expressed.  3.  In  creations  of  nobility  by  writ,  the  peer  so 
created  hath  an  inheritance  in  his  title,  without  expressing 
the  word  ''  heirs;  "  for  heirship  is  implied  in  the  creation, 
unless  it  be  otherwise  specially  provided.  But  in  creations 
by  patent,  which  strlcti  juris,  the  word  '^  heirs  "  must  be 
inserted,  otherwise  there  is  no  inheritance.  4.  In  grants 
of  lands  to  sole  corporations  and  their  successors,  the  word 
'*  successors  "  supplies  the  place  of  '*  heirs;  "^  for  as  heirs 
take  from  the  ancestor,  so  doth  the  successor  from  the  pre- 
decessor. But  in  a  grant  of  lands  to  a  corporation  aggre- 
gate, the  word  '*  successors  "  is  not  necessary,  though  usu- 
ally inserted;  for  albeit  such  simple  grant  be  strictly  only 
an  estate  for  life,  yet  as  that  corporation  never  dies,  such 
estate  for  life  is  perpetual,  or  equivalent  to  a  fee-simple, 
and  therefore  the  law  allows  it  to  be  one.  [109]  5.  Lastly, 
in  the  case  of  the  king",  a  fee-simple  will  vest  in  him  without 
the  word  '*  heirs  "  or  "  successors  "  in  the  grant,  partly 
from  prerogative  royal,  and  partly  from  a  reason  similar  to 
the  last,  because  the  king  in  judgment  of  law  never  dies. 

II.  We  are  next  to  consider  limited  fees,  or  such  estates 
of  inheritance  as  are  clogged  and  confined  with  conditions 
or  qualifications  of  any  sort.  And  these  we  may  divide  into 
two  sorts:  1.  Qualified  or  hase  fees;  and  2.  Fees  condi- 
tional, so  called  at  the  common  law,  and  afterwards  fees- 
tail,  in  consequence  of  the  statute  de  donis. 

1.  A  base  or  qualified  fee  is  such  a  one  as  hath  a  qualifi- 
cation subjoined  thereto,  and  which  must  be  determined 
whenever  the  qualification  annexed  to  it  is  at  an  end.*     As, 

2.  No  longer  in  use  in  this  country.  4.  "A  base  or  determinable  fee  is  a 
See  post.  fee-simple,  which  may  be  terminated 

3.  "  Successors  and  assigns "  are  by  the  happening  of  a  contingency." 
words   commonly  used.  "  The    most    usual    cases     [says    Mr. 


184  Freehold  Estates  of  Inheritance.       [Book  II. 

in  the  case  of  a  grant  to  A  and  his  heirs,  tenants  of  the 
manor  of  Dale,  in  this  instance,  whenever  the  heirs  of  A 
cease  to  be  tenants  of  that  manor,  the  grant  is  entirely 
defeated. 

2.  A  conditional  fee  at  the  common  law  was  a  fee  re- 
strained to  some  particular  heirs,  exclusive  of  others:  as 
to  the  heirs  of  a  man's  body,  by  which  only  his  lineal  de- 
scendants were  admitted,  in  exclusion  of  collateral  heirs; 
or  to  the  heirs  male  of  his  hodij,  in  exclusion  both  of  col- 
laterals and  lineal  females  also.  [110] 

Now  with  regard  to  the  condition  annexed  to  these  fees 
by  the  common  law,  our  ancestors  held  that  such  a  gift  (to 
a  man  and  the  heirs  of  his  body)  was  a  gift  upon  condition 
that  it  should  revert  to  the  donor  if  the  donee  had  no  heirs 
of  his  body,  but  if  he  had,  it  should  then  remain  to  the 
donee.  They  therefore  called  it  a  fee-simple,  on  condition 
that  he  had  issue.  Now  we  must  observe  that  when  any 
condition  is  performed,  it  is  thenceforth  entirely  gone,  and 
the  thing  to  which  it  was  before  annexed  becomes  absolute, 
and  wholly  unconditional.  [Ill]  So  that  as  soon  as  the 
grantee  had  any  issue  born,  his  estate  was  supposed  to  be- 
come absolute  by  the  performance  of  the  condition,  at  least 
for  these  three  purposes:  1.  To  enable  the  tenant  to  alieno 
the  land,  and  thereby  to  bar  not  only  his  own  issue,  but 
also  the  donor  of  his  interest  in  the  reversion.  2.  To  sub- 
ject him  to  forfeit  it  for  treason,  which  he  could  not  do  till 
issue  born,  longer  than  for  his  own  life,  lest  thereby  inherit 
ance  of  the  issue  and  reversion  of  the  donor  might  have 
been  defeated.  3.  To  empower  him  to  charge  the  land  with 
rents,  commons,  and  certain  other  incumbrances,  so  as  to 
bind  his  issue.  However,  if  the  tenant  did  not  in  fact  aliene 
the  land,  the  course  of  descent  was  not  altered  by  this  per- 
formance of  the  condition;  for  if  the  issue  had  afterwards 
died,  and  then  the  tenant,  or  original  grantee,  had  died 
without  making  any  alienation,  the  land  by  the  terms  of  the 

Hopkins]     at    the    present    time    are      that  use  ceases."     See  Hopkins,  Real 
\\\nre  land  is  granted  for  a  specified      Prop.,  178  and  cases  cited  in  notes, 
use,    to   revert   to  the  grantor  when 


Chap.  VII.]     Freehold  Estates  of  Inheritance.  185 

donation  could  descend  to  none  but  the  heirs  of  his  body, 
and  therefore,  in  default  of  them,  must  have  reverted  to 
the  donor.  For  which  reason,  in  order  to  subject  the  lands 
to  the  ordinary  course  of  descent,  the  donees  of  these  con- 
ditional fee-simples  took  care  to  aliene  as  soon  as  they  had 
performed  the  condition  by  having  issue,  and  afterwards 
re-purchased  the  lands,  which  gave  them  a  fee-simple  abso- 
lute that  would  descend  to  the  heirs  general,  according  to 
the  course  of  the  common  laAv. 

The  nobility,  who  were  willing  to  perpetuate  their  posses- 
sions in  their  own  families,  to  put  a  stop  to  this  practice 
procured  the  statute  of  AVestminster  the  second  (commonly 
called  the  statute  de  donis  conditionalibus)^  to  be  made, 
which  revived  in  some  sort  the  ancient  feodal  restraints 
which  were  originally  laid  on  alienations,  by  enacting  that 
from  thenceforth  the  will  of  the  donor  be  observed,  and  that 
the  tenements  so  given  (to  a  man  and  the  heirs  of  his  body) 
should  at  all  events  go  to  the  issue,  if  there  were  any,  or,  if 
none,  should  revert  to  the  donor.  [112] 

Upon  the  construction  of  this  act  parliament,  the  judges 
determined  that  the  donee  had  no  longer  a  conditional  fee- 
simple  which  became  absolute  and  at  his  own  disposal  the 
instant  any  issue  was  born,  but  they  divided  the  estate  into 
two  parts,  leaving  in  the  donee  a^  new  kind  of  particular 
estate  which  they  denominated  a  fee-tail,  and  investing  in 
the  donor  the  ultimate  fee-simple  of  the  land  expectant  on 
the  failure  of  issue,  which  expectant  estate  is  what  we  now 
call  a  reversion. 

Having  thus  shown  the  original  of  estates-tail,  I  now 
proceed  to  consider  what  things  may,  or  may  not,  be  en- 
tailed under  the  statute  de  donis.  [113]  Tenements  is  the 
only  word  used  in  the  statute,  and  this  Sir  Edward  Coke 
expounds  to  comprehend  all  corporeal  hereditaments  what- 
sover,  and  also  all  incorporeal  hereditaments  which  savor 
of  the  realty,  that  is,  which  issue  out  of  corporeal  ones,  or 
which  concern,  or  are  annexed  to,  or  may  be  exercised 
within  the  same,  as  rents,  estovers,  commons,  and  the  like. 

5.  Concerning  conditional  gifts. 


18G  Freehold  Estates  of  Inheritance.       [Book  IL 

Also  offices  and  dignities  which  concern  lands,  or  have  re- 
lation to  fixed  and  certain  places,  may  be  entailed.  But 
mere  personal  chattels  which  savor  not  at  all  of  the  realty 
cannot  be  entailed.  Neither  can  an  office  which  merely 
relates  to  such  personal  chattels,  nor  an  annuity,  which 
charges  only  the  person,  and  not  the  lands  of  the  grantor. 
But  in  these  last,  if  granted  to  a  man  and  the  heirs  of  his 
body,  the  grantee  hath  still  a  fee-conditional  at  common 
law,  as  before  the  statute,  and  by  his  alienation  (after  issue 
born)  may  bar  the  heir  or  reversioner.  An  estate  to  a  man 
and  his  heirs  for  another's  life  cannot  be  entailed,  for  this 
is  strictly  no  estate  of  inheritance  (as  will  appear  here- 
after), and  therefore  not  within  the  statute  de  don  is. 
Neither  can  a  copyhold  estate  be  entailed  by  virtue  of  the 
statute,  for  that  would  tend  to  encroach  upon  and  restrain 
the  will  of  the  lord;  but  by  the  special  custom  of  the  manor 
a  copyhold  may  be  limited  to  the  heirs  of  the  body,  for  here 
the  custom  ascertains  and  interprets  the  lord's  will. 

Next,  as  to  the  several  species  of  estates-tail,  and  how 
they  are  respectively  created.  Estates-tail  are  either  gen- 
eral or  special.  Tail  general  is  where  lands  and  tenements 
are  given  to  one,  and  the  heirs  of  his  body  begotten.  Tenant 
in  tail  special  is  where  the  gift  is  restrained  to  certain  heirs 
of  the  donee 's  body,  and.does  not  go  to  all  of  them  in  general. 
And  this  may  happen  several  ways.  [114]  I  shall  instance 
in  only  one,  as  where  lands  and  tenements  are  given  to  a 
man  and  the  heirs  of  his  body,  on  Mary  his  now  wife  to  be 
begotten.  Here  no  issue  can  inherit,  but  such  special  issue 
as  is  engendered  between  them  two,  not  such  as  the  hus- 
band may  have  by  another  wife;  and  therefore  it  is  called 
special  tail. 

Estates  in  general  and  special  tail  may  either  be  in  tail 
male  or  tail  female.  As  if  lands  be  given  to  a  man  and  his 
heirs  male  of  his  body  begotten,  this  is  an  estate  in  tail  male 
general;  but  if  to  a  man  and  the  heirs  female  of  his  body  on 
hlspresent  wife  begotten,  this  is  an  estate  tail  female  special. 
And  in  case  of  an  entail  mail,  the  heirs  female  shall  never 
inherit,  nor  any  derived  from  them;  nor,  e  con  verso,  the 
heirs  male,  in  case  of  a  gift  in  tail  female. 


Chap.  VII.]     Freehold  Estates  of  Inheritance.  187 

As  the  word  heirs  is  necessary  to  create  a  fee,  so  in  further 
limitation  of  the  strictness  of  the  feodal  donation,  the  word 
• '  body, ' '  or  some  other  words  of  procreation,  are  necessary 
to  make  it  a  fee-tail,  and  ascertain  to  what  heirs  in  par- 
ticular the  fee  is  limited.  If,  therefore,  either  the  words 
of  inheritance  or  words  of  procreation  be  omitted,  albeit 
the  others  are  inserted  in  the  grant,  this  will  not  make  an 
estate-tail.  [115]  In  last  wills  and  testaments,  wherein 
greater  indulgence  is  allowed,  an  estate-tail  may  be  created 
by  a  devise  to  a  man  and  his  seed,  or  to  a  man  and  his  heirs 
male,  or  by  other  irregular  modes  of  expression. 

There  is  still  another  species  of  entailed  estates,  now  indeed  grown  out 
of  use,  yet  still  capable  of  subsisting  in  law,  which  are  estates  Ubero 
maritagio,  or  frankmarriage.  These  are  defined  to  be  where  tenements  are 
given  by  one  man  to  another,  together  with  a  wife,  who  is  the  daughter 
or  cousin  of  the  donor,  to  hold  in  frankmarriage.  Now  by  such  gift, 
though  nothing  but  the  word  frankmarriage  is  expressed,  the  donees  shall 
have  the  tenements  to  them  and  the  heirs  of  their  two  bodies  begotten, 
that  is,  they  are  tenants  in  special  tail. 

The  incidents  to  a  tenancy  in  tail,  under  the  statute 
Westm.  2,  are  chiefly  these:  1.  That  a  tenant  in  tail  may 
commit  waste  on  the  estate-tail  by  felling  timber,  pulling 
down  houses,  or  the  like,  without  being  impeached  or  called 
to  account  for  the  same;  2.  That  the  wife  of  the  tenant  in 
tail  shall  have  her  dower,  or  thirds,  of  the  estate-tail  [116] ; 
3.  That  the  husband  of  a  female  tenant  in  tail  may  be  tenant 
by  the  curtesy  of  the  estate-tail;  4,  That  an  estate-tail  may 
be  barred  or  destroyed  by  a  fine,  bj^  a  common  recovery,  or 
by  lineal  warranty  descending  with  assets  to  the  heir. 

About  two  hundred  years  intervened  between  the  making 
of  the  statute  de  donis  [1285]  and  the  application  of  com- 
mon recoveries  to  this  intent  [to  evade  the  statute],  in  the 
twelfth  year  of  Edward  IV.  [1473],  which  were  then  openly 
declared  by  the  judges  te  be  a  sufficient  bar  of  an  estate-tail. 
[117] 

This  expedient  having  greatly  abridged  estates-tail  with 
regard  to  their  duration,  others  were  soon  invented  to  strip 
them  of  other  privileges.    The  next  that  was  attacked  was 


188  Fkeeiiold  Estates  op  Inheritance.       [Book  IL 

their  freedom  from  forfeitures  for  treason  [stat.  26  Hen. 
Vni.  c.  13]. 

The  next  attack  which  they  suffered  in  order  of  time  was 
by  the  statute  32  Hen.  VIII.  c.  28,  whereby  certain  leases 
made  by  tenants  in  tail,  which  do  not  tend  to  the  prejudice 
of  the  issue,  were  allowed  to  be  good  in  law  and  to  bind  the 
issue  in  tail.  [118]  But  they  received  a  more  violent  blow, 
in  the  same  session  of  parliament,  by  the  construction  put 
upon  the  statute  of  fines  by  the  statute  32  Hen.  VIII.  c.  36, 
which  declares  a  fine  duly  levied  by  tenant  in  tail  to  be  a 
complete  bar  to  him  and  his  heirs,  and  all  other  persons 
claiming  under  such  entail. 

Lastly,  by  a  statute  of  the  succeeding  year  [33  Hen.  VIII. 
«.  39,  <^  75]  all  estates-tail  are  rendered  liable  to  be  charged 
for  payment  of  debts  due  to  the  king  by  record  or  special 
contract,  as  since,  by  the  bankrupt  laws,  they  are  also  sub- 
jected to  be  sold  for  the  debts  contracted  by  a  bankrupt. 
And  by  the  construction  put  on  the  statute  43  Eliz.  c.  4,  an 
appointment  by  tenant  in  tail  of  the  lands  entailed  to  a 
charitable  use  is  good  without  fine  or  recovery. 

Estates-tail,  being  thus  by  degrees  unfettered,  are  now 
reduced  again  to  almost  the  same  state,  even  before  issue 
bom,  as  conditional  fees  were  in  at  common  law  after  the 
condition  was  performed  by  the  birth  of  issue.*^  For,  first, 
the  tenant  in  tail  is  now  enabled  to  aliene  his  lands  and 
tenements  by  fine,  by  recovery,  or  by  certain  other  means, 
and  thereby  to  defeat  the  interest  as  well  of  his  own  issue, 
though  unborn,  as  also  of  the  reversioner,  except  in  the 
case  of  the  crown;  secondly,  he  is  now  liable  to  forfeit  them 
for  high  treason;  and  lastly,  he  may  charge  them  with  rea- 
sonable leases,  and  also  with  such  of  his  debts  as  are  due 
to  the  crown  on  specialties,  or  have  been  contracted  with 
his  fellow-subjects  in  a  course  of  extensive  commerce. 

6.  In  this  country  in  many  states  the  entail.     In  some  .states  they  still 

estates-tail    have    been    abolished    by  exist  but  may  be  barred  by  deed.   See, 

statutes  which  have  either  converted  generaly,  Hopkins,  Real  Prop.,  ch.  4, 

them   with   estates   in   fee-simple,   or  and  especially  pages  52,  53  and  not«s. 

life    estates    with    remainder    to    the  See    Rev.    Stat.    111.,    ch.   30,   sec.   6j 

donee's  heirs  who  would  take  under  Cooper  v.  Cooper,  76  111.  57. 


Chap.  VIII.J     Fbeeholds  not  of  Inheritance.  18^ 

CHAPTER  VIII. 

OF  FBEEHOLDS  NOT  OF  INHERITANCE. 

Of  estates  for  life,  some  are  conventional,  or  expressly 
created  by  the  act  of  tlie  parties;  others  merely  legal,  or 
created  by  construction  and  operation  of  law.  We  will 
consider  them  both  in  their  order.  [120] 

I.  Estates  for  life,  expressly  created  by  deed  or  grant 
(which  alone  are  properly  conventional),  are  where  a  lease 
is  made  of  lands  or  tenements  to  a  man  to  hold  for  the  term 
of  his  own  life  or  for  that  of  any  other  person,  or  for  more 
lives  than  one,  in  any  of  which  cases  he  is  styled  tenant 
for  life ;  only  when  he  holds  the  estate  by  the  life  of  another 
he  is  usually  called  tenant  per  a  liter  vie.^  They  are  given 
or  conferred  by  the  same  feodal  rights  and  solemnities,  the 
same  investiture  or  livery  of  seisin,  as  fees  themselves  are, 
and  they  are  held  by  fealty  if  demanded,  and  such  conven- 
tional rents  and  services  as  the  lord,  or  lessor,  and  his 
tenant,  or  lessee,  have  agreed  on. 

Estates  for  life  may  be  created  not  only  by  the  express 
words  before  mentioned,  but, also  by  a  general  grant,  with- 
out defining  or  limiting  any  specific  estate.  [121]  As,  if 
one  grants  to  A  B  the  manor  of  Dale,  this  makes  him  tenant 
for  life.  Also  such  a  grant  at  large,  or  a  grant  for  a  term 
of  life  generally,  shall  be  construed  to  be  an  estate  for  the 
life  of  the  grantee,  in  case  the  grantor  hath  authority  to 
make  such  grant.  For  an  estate  for  a  man's  own  life  is 
more  beneficial  and  of  a  higher  nature  than  for  any  other 
life,  and  the  rule  of  law  is  that  all  grants  are  to  be  taken 
most  strongly  against  the  grantor,-  unless  in  the  case  of  the 
king. 

There  are  some  estates  for  life  which  may  determine 
upon  future  contingencies  before  the  life  for  which  they  are 
created  expires ;  as  if  an  estate  be  granted  to  a  woman  dur- 

1.  For  another  life.  See  Broom's  Legal  Maxims,  *529;  Co. 

2.  This  is  an  important  rule  of  law.      Litt.,  36a.  , 


1 90  Fkbbholds  not  of  Inheritance.  [Book  II. 

ing  her  widowhood,  or  to  a  man  until  he  be  promoted  to  a 
benefice.  In  these  and  similar  cases,  whenever  the  contin- 
gency happens,  when  the  widow  marries  or  when  the  grantee 
obtains  a  benefice,  the  respective  estates  are  absolutely  de- 
termined and  gone.  Yet  while  they  subsist  they  are  reck- 
oned estates  for  life,  because,  the  time  for  which  they  will 
endure  being  uncertain,  they  may  by  possibility  last  for  life, 
if  the  contingencies  upon  which  they  are  to  determine  do 
not  sooner  happen.  * 

And  moreover,  in  case  an  estate  be  granted  to  a  man  for  his  life,  gen- 
erally it  may  also  determine  by  his  civil  death,  as  if  he  enters  into  a 
monastery,  whereby  he  is  dead  in  law;  for  which  reason  in  conveyances 
the  grant  is  usually  made  "  for  the  term  of  a  man's  natural  life,"  which 
can  only  determine  by  his  natural  death. 

The  incidents  to  an  estate  for  life  are  principally  the 
following,  which  are  applicable  not  only  to  that  species  of 
tenants  for  life  which  are  expressly  created  by  deed,  but 
also  to  those  which  are  created  by  act  and  operation  of  law\ 
[122] 

1.  Every  tenant  for  life,  unless  restrained  by  covenant 
or  agreement,  may  of  common  right  take  upon  the  land 
demised  to  him  reasonable  estovers  or  botes.  For  he  hath 
a  right  to  the  full  enjoyment  and  use  of  the  land  and  all 
its  profits  during  his  estate  therein.-^  But  he  is  not  per- 
mitted to  cut  down  timber,  or  to  do  other  waste  upon  the 
premises,  for  the  destruction  of  such  things  as  are  not  the 
temporary  profits  of  the  tenement  is  not  necessary  for  the 
tenant's  complete  enjoyment  of  his  estate,  but  tends  to  the 
permanent  and  lasting  loss  of  the  person  entitled  to  the 
inheritance.^ 

3.  Hopkins,  Real  Prop.,  &1  and  cases  to  this  country,  especially  those  rclat- 
cited.  ing  to  cutting  down  trees  and  the  use 

4.  Waste  is  a  permanent  and  ma-  of  land,  and  what  would  be  waste  in 
terial  injury  to  the  reversionary  in-  a  thickly  settled  eastern  state  might 
terest.  The  English  rules  as  to  waste  not  be  in  a  new  and  undeveloped  re- 
are,  owing  to  the  diflfcrence  in  circum-  gion.  Hopkins,  Real  Prop.,  62-67  and 
stances,  to  a  large  extent  inapplicable  cases  cited. 


Cjiap.  VIII.]     Freeholds  not  of  Inheeitance.  191 

2.  Tenant  for  life,  or  his  representatives,  shall  not  be 
prejudiced  by  any  sudden  determination  of  his  estate,  be- 
cause such  a  determination  is  contingent  and  uncertain. 
Therefore  if  a  tenant  for  his  own  life  sows  the  lands  and 
dies  before  harvest,  his  executors  shall  have  the  emblements 
or  profits  of  the  crop;  for  the  estate  was  determined  by  • 
the  act  of  God,  and  it  is  a  maxim  in  the  law  that  actus  Dei 
nemini  facit  injuriam.^  So  it  is  also  if  a  man  be  tenant  for 
the  life  of  another,  and  cestuy  que  vie,  or  he  on  whose  life 
the  land  is  held,  dies  after  the  corn  sown,  the  tenant  per 
auter  vie^  shall  have  the  emblements.  [123]  The  same  is 
also  the  rule  if  a  life-estate  be  determined  by  the  act  of 
law.''  Therefore  if  a  lease  be  made  to  husband  and  wife 
during  coverture  (which  gives  them  a  determinable  estate 
for  life),  and  the  husband  sows  the  land,  and  afterwards 
they  are  divorced  a  vinculo  tnafrimonii^  [decree  of  nullity], 
the  husband  shall  have  the  emblement  in  this  case,  for  the 
sentence  of  divorce  is  the  act  of  law.  But  if  an  estate  for 
life  be  determined  by  the  tenant's  own  act  (as  by  for- 
feiture for  waste  committed,  or  if  a  tenant  during  widow- 
hood thinks  proper  to  marry),  in  these  and  similar  cases, 
the  tenants,  having  thus  determined  the  estate  by  their  own 
acts,  shall  not  be  entitled  to  take  the  emblements.  The  doc- 
trine of  emblements  extends  not  only  to  corn  sown,  but  to 
roots  planted,  or  other  annual  artificial  profit;  but  it  is 
otherwise  of  fruit-trees,  grass,  and  the  like,  which  are  not 
planted  annually  at  the  expense  and  labor  of  the  tenant, 
but  are  either  a  permanent  or  natural  profit  of  the  earth.^ 

3.  A  third  incident  to  estates  for  life  relates  to  the  under- 
tenants or  lessees;  for  they  have  the  same,  nay  greater  in- 
dulgences than  the  lessors,  the  original  tenants  for  life. 
The  same,  for  the  law  of  estovers  and  emblements  with 
regard  to  the  tenant  for  life  is  also  law  with  regard  to  his 
under-tenant,  who  represents  him  and  stands  in  his  place; 

5.  The  act  of  God  works  wrong  to  ch.  8,  where  the  cases  are  fully  col- 
no  one.  lected. 

6.  For  another  life.  8.  From  the  bond  of  matrimony. 

7.  See  Hopkins,  Real  Prop.,  61  and  9.  See  note,  supra. 
notes;    Ewell   on   Fixtures    {2d   Ed.), 


192  Freeholds  not  of  Inheritance.  [Book  II. 

and  greater,  for  in  those  cases  where  tenant  for  life  shall 
not  have  the  emblements,  because  the  estate  determines  by 
his  own  act,  the  exception  shall  not  reach  his  lessee,  who 
is  a  third  person.  [124]  As  in  the  case  of  a  woman  who 
holds  durante  viduitate;^  her  taking  husband  is  her  own 
act,  and  therefore  deprives  her  of  the  emblements;  but  if 
she  leases  her  estate  to  an  under-tenant,  who  sows  the  land, 
and  she  then  marries,  this  her  act  shall  not  deprive  the 
tenant  of  his  emblements,  who  is  a  stranger  and  could  not 
prevent  her.^  The  lessees  of  tenants  for  life  had  also  at 
the  common  law  another  most  unreasonable  advantage,  for 
at  the  death  of  their  lessors,  the  tenants  for  life,  these 
under-tenants  might  if  they  pleased  quit  the  premises,  and 
pay  no  rent  to  anybody  for  the  occupation  of  the  land  since 
the  last  quarter-day  or  other  day  assigned  for  payment  of 
rent.  To  remedy  which  it  is  now  enacted  that  the  executors 
or  administrators  of  tenant  for  life,  on  whose  death  any 
lease  determined,  shall  recover  of  the  lessee  a  ratable  pro- 
portion of  rent  from  the  last  day  of  payment  to  the  death 
of  such  lessor.^ 

II.  The  next  estate  for  life  is  of  the  legal  kind,  as  contra- 
distinguished from  conventional,  viz.,  that  of  tenant  in  tail 
after  possibility  of  issue  extinct.  This  happens  where  one 
is  tenant  in  special  tail,  and  a  person,  from  whose  body  the 
issue  was  to  spring,  dies  without  issue,  or,  having  left  issue, 
that  issue  becomes  extinct.  In  either  of  these  cases  the 
surviving  tenant  in  special  tail  becomes  tenant  in  tail  after 
possibility  of  issue  extinct.  This  estate  must  be  created 
by  the  act  of  God,  that  is,  by  the  death  of  that  person  out 
of  whose  body  the  issue  was  to  spring,  for  no  limitation, 
conveyance,  or  other  human  act  can  make  it.  [125]  For, 
if  land  be  given  to  a  man  and  his  wife  and  the  heirs  of  their 
two  bodies  begotten,  and  they  are  divorced  a  vinculo  matri- 
monii, they  shall  neither  of  them  have  this  estate,  but  be 
barely  tenants  for  life,  notwithstanding  the  inheritance  once 
vested  in  them.    A  possibility  of  issue  is  always  supposed 

1.  During  widowhood.  3.  Consult  the  local  statutes. 

2.  See  note,  supra. 


C!hap.  VIII.]     Freeholds  not  of  Inheritance,  193 

to  exist  in  law,  unless  extinguished  by  the  death  of  the  par- 
ties, even  though  the  donees  be  each  of  them  an  hundred 
years  old. 

This  estate  is  of  an  amphibious  nature,  partaking  partly 
of  an  estate-tail  and  partly  of  an  estate  for  life.  The  tenant 
is,  in  truth,  only  tenant  for  life,  but  with  many  of  the  privi- 
leges of  a  tenant  in  tail,*  as  not  to  be  punishable  for  waste, 
&c. ;  or  he  is  tenant  in  tail  with  many  of  the  restrictions  of 
a  tenant  for  life,  as  to  forfeit  his  estate  if  he  alienes  it  in 
fee-simple.  Whereas  such  alienation  by  tenant  in  tail, 
though  voidable  by  the  issue,  is  no  foi"feiture  of  the  estate 
to  the  reversioner,  who  is  not  concerned  in  interest  till  all 
possibility  of  issue  be  extinct.  [126]  But  in  general  the 
law  looks  upon  this  estate  as  equivalent  to  an  estate  for  life 
only,  and  as  such  will  permit  this  tenant  to  exchange  his 
estate  with  a  tenant  for  life,  which  exchange  can  only  be 
made,  as  we  shall  see  hereafter,  of  estates  that  are  equal 
in  their  nature. 

III.  Tenant  by  the  curtesy  of  England  is  where  a  man 
marries  a  woman  seised  of  an  estate  of  inheritance,  that  is, 
of  lands  and  tenements  in  fee-simple  or  fee-tail,  and  has 
by  her  issue,  born  alive,  which  was  capable  of  inheriting 
her  estate.  In  this  case  he  shall,  on  the  death  of  his  wife, 
hold  the  lands  for  his  life  jas  tenant  by  the  curtesy  of  Eng- 
land. As  soon  as  any  child  was  born,  the  father  began  to 
have  a  permanent  interest  in  the  lands,  he  became  one  of 
the  pares  curtis^  did  homage  to  the  lord,  and  was  called 
tenant  by  the  curtesy  initiate,  and  this  estate  being  once 
vested  in  him  by  the  birth  of  the  child,  was  not  suffered  to 
determine  by  the  subsequent  death  or  coming  of  age  of 
the  infant.  [127] 

There  are  four  requisites  necessary  to  make  a  tenancy  by 
the  curtesy:  marriage,  seisin  of  the  wife,  issue,  and  death 
of  the  wife.  1.  The  marriage  must  be  canonical  and  legal. 
2.  The  seisin  of  the  wife  must  be  an  actual  seisin  or  posses- 
sion of  the  lands,  not  a  bare  right  to  possess,  which  is  a 
seisin  in  law,  but  an  actual  possession,  which  is  a  seisin  in 
deed.     And  therefore  a  man  shall  not  be  tenant  by  the  cur- 

4.  See  ante,  *118,  note.  5.  Peera  of   the  court. 

13 


194  Freeholds  not  of  Inheeitance.  [Book  II. 

tesy  of  a  remainder  or  reversion.  But  of  some  incorporeal 
hereditaments  a  man  may  be  tenant  by  the  curtesy,  though 
there  have  been  no  actual  seisin  of  the  wife,  as  in  case  of 
an  advowson,  where  the  church  has  not  become  void  in  the 
lifetime  of  the  wife,  which  a  man  may  hold  by  the  curtesy, 
because  it  is  impossible  ever  to  have  actual  seisin  of  it, 
and  impotentia  excusat  legem.  If  the  wife  be  an  idiot,  the 
husband  shall  not  be  tenant  by  the  curtesy  of  her  lands. 
3.  There  must  be  issue  bom  alive  during  the  life  of  the 
mother,*  and  capable  of  inheriting  the  mother's  estate. 
[128]  The  time  when  the  issue  was  born  is  immaterial, 
provided  it  were  during  the  coverture,  for,  whether  it  were 
before  or  after  the  wife's  seisin  of  the  lands,  whether  it  be 
living  or  dead  at  the  time  of  the  seisin  or  at  the  time  of 
the  wife's  decease,  the  husband  shall  be  tenant  by  the  cur- 
tesy. The  husband  by  the  birth  of  the  child  becomes  (as 
was  before  observed)  tenant  by  the  curtesy  initiate,  and 
may  do  many  acts  to  charge  the  lands,  but  his  estate  is 
not  consummate  till  the  death  of  the  wife,  w^hich  is  the 
fourth  and  last  requisite  to  make  a  complete  tenant  by  the 
curtesy.^ 

IV.  Tenant  in  dower  is  where  the  husband  of  a  woman  is 
seised  of  an  estate  of  inheritance  and  dies.  In  this  case 
the  wife  shall  have  the  third  part  of  all  the  lands  and  tene- 
ments whereof  he  was  seised  at  any  time  during  the  cover- 
ture, to  hold  to  herself  for  the  term  of  her  natural  life. 
[129] 

1.  Who  may  be  endowed.  [130]  She  must  be  the  actual 
wife  of  the  party  at  the  time  of  his  decease.  If  she  be  di- 
vorced a  vinculo  matrimonii,^  she  shall  not  be  endowed. 

6.  It  will  not  be  sufficient,  it  is  regarded  as  a  correct  statement  of 
stated,  if  the  mother  die  in  childbirth  the  common  law  upon  the  subject. 
and  the  child  is  afterwards  delivered  See,  generally,  Hopkins,  Real  Prop., 
by  Caesarean  section.  Hopkins,  Real  73-83  and  notes,  where  a  large  num- 
Prop.,  .74,  citing  Co.  Litt.,  296;  Mar-  ber  of  cases  are  collected.  Consult 
sellis  V.  Thalhimer,  2  Paige  (N.  Y.),  local  statutes.  In  Illinois  the  hus- 
42.  band   has  a   statutory  dower   and   no 

7.  In  many  of  the  states  curtesy  curtesy.  Rev.  Stat.  111.,  ch.  41,  sec.  1. 
has  been  abolished  by  statute  or  dower  8.  From  the  bond  of  marriage.  In 
substitute  therefor;  in  others  it  ex-  Blackstone's  time  a  decree  o  vinculo 
ists  as  at  common  law.     The  text  is  rendered  the  marriage  void  from  the 


Chap.  VIII.]     Freeholds  not  of  Inheritance.  195 

But  a  divorce  a  mensa  et  thoro^  only  doth  not  destroy  the 
dower,  no,  not  even  for  adultery  itself,  by  the  common  law. 
Yet  now  by  the  statute  Westm.  2,^  if  a  woman  voluntarily 
leaves  (which  the  law  calls  eloping  from)  her  husband,  and 
lives  with  an  adulterer,  she  shall  lose  her  dower,  unless  her 
husband  be  voluntarily  reconciled  to  her.  It  was  formerly 
held  that  the  wife  of  an  idiot  might  be  endowed,  though  the 
husband  of  an  idiot  could  not  be  tenant  by  the  curtesy; 
but  as  it  seems  to  be  at  present  agreed,  upon  principles  of 
sound  sense  and  reason,  that  an  idiot  cannot  marry,  being 
incapable  of  consenting  to  any  contract,  this  doctrine  can- 
not now  take  place.^  By  the  ancient  law  the  wife  of  a  per- 
son attainted  of  treason  or  felony  could  not  be  endowed. 
An  alien  also  cannot  be  endowed^  unless  she  be  queen  con- 
sort, for  no  alien  is  capable  of  holding  land.  [131]  The 
wife  must  be  above  nine  years  old  at  her  husband's  death, 
otherwise  she  shall  not  be  endowed. 

2.  Next,  of  what  may  a  wife  be  endowed.  She  is  now  by 
law  entitled  to  be  endowed  of  all  lands  and  tenements  of 
which  her  husband  was  seised  in  fee-simple  or  fee-tail  at 
any  time  during  the  coverture,  and  of  which  any  issue  which 
she  might  have  had  might  by  possibility  have  been  heir.'* 
Therefore,  if  a  man  seised  in  fee-simple  hath  a  son  by  his 
first  wife,  and  after  marries  a  second  wife,  she  shall  be 

beginning  and  was  equivalent  to  our  of  a  divorce  is  merely  a  judicial  sep- 
decree  of  nullity.  Under  the  general  aration  and  does  not  avoid  the  mar- 
American  law  (except  in  South  Caro-  riage. 

lina),  divorces  a  vinculo  are  granted  1.  Re-enacted  or  recognized  in  some 

for     adultery,     desertion     and     other  of   the   states.     Hopkins,  Real   Prop., 

causes  arising  after  the  marriage,  and  103  and  notes.   Consult  local  statutes, 

do    not    avoid    it   ab   initio    but   only  2.  If  the  idiocy  or  insanity  avoids 

from   the    time   of   the   decree   which  the    marriage    ab    initio,    of    course, 

docs  not  necessarily,  where  she  is  free  dower  fails  with  it;   but  if  the  mar- 

from  fault,  bar  her  dower,  as  does  a  riage   is  merely  voidable,   the  case  is 

drcree    of    nullity.      In    some    states,  otherwise. 

however,  a  decree  a  vinculo  for  causes  3.  Changed     by     statute     in     some 

arising  after   the  marriage,   bars  her  states.      Hopkins,    Real    Prop.,    103, 

dower;  in  others  it  does  not.     See  the  notes. 

local  statutes  and  the  cases  collected  4.  Hopkins,      Real      Prop.,      83-93. 

in   Hopkins'  Real   Estate,   104,  notes.  There   is    no    dower    in   an    estate   of 

9.  From  bed  and  board.     This  sort  joint  tenancy.    Id.,  92. 


196  Fkeeholds  not  of  Inheritance.  [Book  II. 

endowed  of  his  lands,  for  her  issue  might  by  possibility 
have  been  heir  on  the  death  of  the  son  by  the  former  wife. 
But  if  there  be  a  donee  in  special  tail  who  holds  lands  to 
him  and  the  heirs  of  his  body  begotten  on  Jane  his  wife, 
though  Jane  may  be  endowed  of  these  lands,  yet  if  Jane 
dies  and  he  marries  a  second  wife,  that  second  wife  shall 
never  be  endowed  of  the  lands  entailed,  for  no  issue  that 
she  could  have  could  by  any  possibility  inherit  them.  A 
seisin  in  law  of  the  husband  will  be  as  effectual  as  a  seisin 
in  deed  in  order  to  render  the  wife  dowable,  for  it  is  not 
in  the  wife's  power  to  bring  the  husband's  title  to  an  actual 
seisin,  as  it  is  in  the  husband's  power  to  do  with  regard  to 
the  wife's  lands, —  which  is  one  reason  why  he  shall  not 
be  tenant  by  the  curtesy  but  of  such  lands  whereof  the  wife, 
or  he  himself  in  her  right,  was  actually  seised  in  deed.  The 
seisin  of  the  husband,  for  a  transitory  instant  only,  when 
the  same  act  which  gives  him  the  estate  conveys  it  also  out 
of  him  again,  —  as  where,  by  a  fine,  land  is  granted  to  a 
man,  and  he  immediately  renders  it  back  by  the  same  fine, 
—  such  a  seisin  will  not  entitle  the  wife  to  dower;  for  the 
land  was  merely  in  transitu,^  and  never  rested  in  the  hus- 
band, the  grant  and  render  being  one  continued  act.  [132] 
But  if  the  land  abides  in  him  [beneficially]  for  the  interval 
of  but  a  single  moment,  it  seems  that  the  wife  shall  be  en-, 
dowed  thereof.  And,  in  short,  a  widow  may  be  endowed 
of  all  her  husband's  lands,  tenements,  and  hereditaments, 
corporeal  or  incorporeal  [such  as  savor  of  the  realty],  un- 
der the  restrictions  before  mentioned,  unless  there  be  some 
special  reason  to  the  contrary.  Copyhold  estates  are  also 
not  liable  to  dower,  being  only  estates  at  the  lord's  will, 
unless  by  the  special  custom  of  the  manor,  in  which  case 
it  is  usually  called  the  widow's  free  bench.  But  where 
dower  is  allowable,  it  matters  not  though  the  husband  aliene 
the  lands  during  the  coverture,  for  he  alienes  them  liable 
to  dower. 

3.  Next,  as  to  the  manner  in  which  a  woman  is  to  be 
endowed.     There  are  now  subsisting  four  species  of  dower: 

5.  In  passage.     Such  is  the  case  of      back  to  the  grantor  to  secure  unpaid 
a  conveyance  of  land  and  a  mortgago      purchase  money. 


Cjiap.  VIII.]     Freeholds  not  of  Inhebitance.  197 

1.  Dower  by  the  common  law  [and  by  statute  in  the  United 
States],  or  that  which  is  before  described. 

2.  Dower  by  particular  custom,  as  that  the  wife  should  have  half  the 
husband's  lands,  or  in  some  places  the  whole,  and  in  some  only  a  quar- 
ter, 3.  Dower  ad  ostium  ecclesiae  [obsolete],  which  is  where  tenant  in 
fee-simple  of  full  age,  openly  at  the  church  door,  where  all  marriages 
were  formerly  celebrated,  after  affiance  made,  and  (Sir  Edward  Coke 
in  his  translation  of  Littleton,  adds)  troth  plighted  between  them,  doth 
endow  the  wife  with  the  whole,  or  such  quantity  as  he  shall  please,  of 
his  lands,  at  the  same  time  specifying  and  ascertaining  the  same,  on 
which  the  wife,  after  her  husband's  death,  may  enter  without  further 
ceremony.  [133]  4.  Dower  ex  assensu  patris  [obsolete],  which  is  only 
a  species  of  dower  ad  ostium  ecclesiae,  made  when  the  husband's  father 
is  alive,  and  the  son  by  his  consent,  expressly  given,  endows  his  wife 
with  parcel  of  his  father's  lands. 

I  proceed  to  consider  the  method  of  endowment,  or  as- 
signing dower,  by  the  common  law,  which  is  now  the  only 
usual  species.  [135]  It  was  provided,  first  by  the  charter 
of  Henry  I.,  and  afterwards  by  Magna  Carta,  that  the 
widow  shall  pay  nothing  for  her  marriage,  nor  shall  be  dis- 
trained to  marry  afresh  if  she  chooses  to  live  without  a 
husband,  but  shall  not,  however,  marry  against  the  consent 
of  the  lord;  and  further,  that  nothing  shall  be  taken  for 
assignment  of  the  widow's  dower,  but  that  she  shall  remain 
in  her  husband's  capital  mansion-house  for  forty  days  after 
his  death,  during  which  time  her  dower  shall  be  assigned. 
These  forty  days  are  called  the  widow's  quarantine,*'  a  term 
made  use  of  in  law  to  signify  the  number  of  forty  days, 
whether  applied  to  this  occasion  or  any  other.  The  par- 
ticular lands  to  be  held  in  dower  must  be  assigned  by  the 
heir  of  the  husband  or  his  guardian,^  not  only  for  the  sake 
of  notoriety,  but  also  to  entitle  the  lord  of  the  fee  to  demand 
his  services  of  the  heir,  in  respect  of  the  lands  so  liolden. 
For  the  heir  by  this  entry  becomes  tenant  thereof  to  the 
lord,  and  the  widow  is  immediate  tenant  to  the  heir  by  a 
kind  of  subinfeudation,  or  under-tenancy,  completed  by  this 

6.  Extended  and  modified  by  stat-  .     7.  See,    however,    Bonner    v.    Peter- 

ute  in  some  of  the  states.     See  local  son,  44  111.  360.     See  Hopkins,  Real 

statutes,    also    Hopkins,    Real    Prop.,  Prop.,  99. 
94  and  notes. 


198  Fkeeholds  3!fOT  OF  Inheritaxce.  [Book  II. 

investiture  or  assignment,  which  tenure  may  still  be  created, 
notwithstanding  the  statute  of  quia  emptor es,^  because  the 
heir  parts  not  with  the  fee-simple,  but  only  with  an  estate 
for  life.  [136]  If  the  heir  or  his  guardian  do  not  assign 
her  dower  within  the  term  of  quarantine,  or  do  assign  it 
unfairly,  she  has  her  remedy  at  law,  and  the  sheriff  is  ap- 
pointed to  assign  it.  Or  if  the  heir  (being  under  age)  or 
his  guardian  assign  more  than  she  ought  to  have,  it  may 
be  afterwards  remedied  by  a  writ  of  admeasurement  of 
dower.**  If  the  thing  of  which  she  is  endowed  be  devisible, 
her  dower  must  be  set  out  by  metes  and  bounds;^  but  if  it 
be  indivisible,  she  must  be  endowed  specially,  as  of  the  third 
presentation  to  a  church,  the  third  toll-dish  of  a  mill,  the 
third  part  of  the  profits  of  an  office,  the  third  sheaf  of  tithe, 
and  the  like.^ 

4.  How  dower  may  be  barred  or  prevented.  [Regulated 
by  statute  in  this  country.]^  A  widow  may  be  barred  of 
her  dower,  not  only  by  elopement,  divorce,  being  an  alien, 
the  treason  of  her  husband,  and  other  disabilities  before 
mentioned,  but  also  by  detaining  the  title-deeds  or  evidences 
of  the  estate  from  the  heir  until  she  restores  them.*  And 
by  the  statute  of  Gloucester,  if  a  dowager  alienes  the  land 
assigned  her  for  dower,  she  forfeits  it  ipso  facto,^  and  the 
heir  may  recover  it  by  action.  [Here  she  may  aliene  for 
her  own  life.]  [137]  A  woman  also  may  be  barred  of  her 
dower  by  levying  a  fine  or  suffering  a  recovery  of  the  lands 
during  her  coverture.  But  the  most  usual  method  of  bar- 
ring dowers  is  by  jointures,  as  regulated  by  the  statute, 
27  Hen.  VIII.  c!  10. 

A  jointure,  which,  strictly  speaking,  signifies  a  joint 
estate  limited  to  both  husband  and  wife,  but  in  common 

8.  Because  purchaser.  the  proceeds  divided.     Hopkins,  Reai 

9.  The  remedies  for  the  recovery  of      Prop.,  98. 

dower  vary  in  the  several  states  ac-  3.  See  ante,  notes. 

cording  to  the   local  practice.     Hop-  4.  As    title   deeds   are   recorded    in 

kins.  Real  Prop.,  100.  this   country,   this  is  not  applicable 

1.  Hopkins,  Real  Prop.,  98.  here. 

2.  When  such  division  is  impossible  5.  In  very  fact. 
or  impracticable,  the  land  is  sold  and 


Chap.  VIII.]     Fkeeholds  not  of  IxHERiTAifCE.  199 

acceptation  extends  also  a  sole  estate  limited  to  the  wife 
only,  is  thus  defined  by  Sir  Edward  Coke:  "  A  competent 
livelihood  of  freehold  for  the  wife,  of  lands  and  tenements 
to  take  effect,  in  profit  or  possession  presently  after  the 
death  of  the  husband,  for  the  life  of  the  wife  at  least." 
[Regulated  by  statute  here.]  But  then  these  four  requisites 
must  be  punctually  observed:  1.  The  jointure  must  take 
•effect  immediately  on  the  death  of  the  husband.  [138]  2. 
It  must  be  for  her  own  life  at  least,  and  not  pur  aider  vie,^ 
for  any  term  of  years,  or  other  smaller  estate.  3.  It  must 
be  made  to  herself,  and  no  other  in  trust  for  her.  4.  It 
must  be  made,  and  so  in  the  deed  particularly  expressed 
to  be  in  satisfaction  of  her  whole  dower,  and  not  of  any 
particular  part  of  it.  If  the  jointure  be  made  to  her  after 
marriage,  she  has  her  election  after  her  husband's  death, 
as  in  dower  ad  ostium  ecclesiae/  and  may  either  accept  it 
or  refuse  it,  and  betake  herself  to  her  dower  at  common 
law,  for  she  was  not  capable  of  consenting  to  it  during 
■coverture.  And  if,  by  any  fraud  or  accident,  a  jointure 
made  before  marriage  proves  to  be  on  a  bad  title,  and  the 
jointress  is  evicted  or  turned  out  of  possession,  she  shall 
then  (by  the  provisions  of  the  same  statute)  have  her  dower 
pro  tanto^  at  the  common  law.^ 

A  widow  may  enter  at  once,  without  any  formal  process, 
on  her  jointure  land,  as  she  also  might  have  done  on  dower 
ad  ostium  ecclesiae,  which  a  jointure  in  many  points  re- 
sembles. And  the  resemblance  was  still  greater  while  that 
species  of  dower  continued  in  its  primitive  state;  whereas 
no  small  trouble,  and  a  very  tedious  method  of  proceeding, 
is  necessary  to  compel  a  legal  assignment  of  dower.  [139] 
And,  what  is  more,  though  dower  be  forfeited  by  the  trea- 
son of  the  husband,  yet  lands  settled  in  jointure  remain 
imimpeached  to  the  widow. 

6.  For  the  life  of  another.  109.     But  the  most  common  method 

7.  At  the  door  of  the  church.  is  by  joining  with  her  husband  in  the 

8.  For  so  much.  execution  of  a  conveyance  of  the  land 

9.  With  us  dower  may  be  barred  by  and  acknowledging  the  same  in  ac- 
jointure  in  lieu  of  dower  and  by  a  cordance  with  local  statutes.  See  the 
testamrntary  provision  in  lieu  of  local  statutes,  also  Hopkins,  Real 
dcwer.     See  Hopkins,  Real  Prop.,  107,  Prop.,  105-108. 


200  Estates  Less  than  Fbeehold.  [Book  II. 


CHAPTER  IX, 

OF  ESTATES   LESS  THAN    rKEEHOLD. 

Of  estates  that  are  less  than  freehold  there  are  three 
sorts:  1.  Estates  for  years;  2.  Estates  at  will;  3.  Estates 
by  sufferance.^ 

I.  An  estate  for  years  is  a  contract  for  the  possession  of 
lands  or  tenements  for  some  determinate  period,  and  it 
takes  place  where  a  man  letteth  them  to  another  for  the 
term  of  a  certain  number  of  years  agreed  upon  between  the 
lessor  and  the  lessee,  and  the  lessee  enters  thereon.^  If 
the  lease  be  but  for  half  a  year  or  a  quarter,  or  any  less 
time,  this  lessee  is  respected  as  a  tenant  for  years,  and  is 
styled  so  in  some  legal  proceedings,  a  year  being  the  short- 
est term  which  the  law  in  this  case  takes  notice  of.  And 
this  may  not  improperly  lead  us  into  a  short  digression 
concerning  the  division  and  calculation  of  time  by  the 
English  law. 

The  space  of  a  year  is  a  determinate  and  well-kno^vn 
period,  consisting  commonly  of  365  days;  for  though  in 
bissextile,  or  leap-years,  it  consists  properly  of  366,  yet  hj 
the  statute  21  Hen.  III.  the  increasing  day  in  the  leap-year, 
together  with  the  preceding  day,  shall  be  accounted  for  one 
day  only.  [141] 

That  of  a  month  is  more  ambiguous,  there  being  in  com- 
mon use  two  ways  of  calculating  months,  either  as  lunar,  — 
consisting  of  twenty-eight  days,  the  supposed  revolution 
of  the  moon,  thirteen  of  w^hich  make  a  year,  —  or  as  cal- 

1.  The  law  of  Landlord  and  Tenant  hill  on  Landlord  and  Tenant   (1909)^ 

is   too  voluminous  to   be  summarized  2  vols.;  Woodfall's  Landlord  and  Ten- 

in    a    note.      For    detail    beyond    the  ant    (1900),  2  vols.     See,  also,  Ewell 

text,  see  Wood  on  Landlord  and  Ten-  on    Fixtures    (2d   Ed.,   1905),   ch.   4; 

ant   (1882),  2  vols.;  Taylor  on  Land-  Washburn  on  Real  Property, 
lord  and  Tenant  (1909),  2  vols.;  Mc-  2.  As   to   the   effect  of  the   Statute 

Adam      on      Landlord      and      Tenant  of  Frauds  in  requiring  the  leaee  to  be 

(1910),  4  vols.;  Tiffany  on  Landlord  in  writing,  see  post. 
and  Tenant    (1909),  2  vols.;   Under- 


Chap.  IX.]         Estates  Less  than  Freehold.  201 

endar  months  of  unequal  lengths,  according  to  the  Julian 
division  in  our  common  almanacs,  commencing  at  the 
calends  of  each  month,  whereof  in  a  year  there  are  only 
twelve.  A  month  in  law  is  a  lunar  month,  or  twenty-eight 
days,  unless  otherwise  expressed.  Therefore  a  lease  for 
^'  twelve  months  "  is  only  for  forty-eight  weeks;  but  if  it 
be  for  *'  a  twelvemonth  "  in  the  singular  number,  it  is  gocd 
for  the  whole  year.^ 

In  the  space  of  a  day  all  the  twenty-four  hours  are  usually 
reckoned,  the  law  generally  rejecting  all  fractions  of  a  day, 
in  order  to  avoid  disputes.  Therefore,  if  I  am  bound  to 
pay  money  on  any  certain  day,  I  discharge  the  obligation 
if  I  pay  it  before  twelve  o'clock  at  night,  after  which  the 
following  day  commences.* 

Every  estate  which  must  expire  at  a  period  certain  and 
prefixed,  by  whatever  words  created,  is  an  estate  for  years. 
[143]  And  therefore  this  estate  is  frequently  called  a  term, 
terminus,  because  its  duration  or  continuance  is  bounded, 
limited,  and  determined.  But  id  certum  est,  quod  certum 
reddi  potest;^  therefore  if  a  man  make  a  lease  to  another 
for  so  many  years  as  J.  S.  shall  name,  it  is  a  good  lease 
for  years.  For  though  it  is  at  present  uncertain,  yet  when 
J.  S,  hath  named  the  years,  it  is  then  reduced  to  a  certainty. 
If  no  day  of  commencement  is  named  in  the  creation  of 
this  estate,  it  begins  from  the  making,  or  delivery,  of  the 
lease.  A  lease  for  so  many  years  as  J.  S.  shall  live  is  void 
from  the  beginning,^^  for  it  is  neither  certain  nor  can  ever 
T3e  reduced  to  a  certainty  during  the  continuance  of  the 
lease.  And  the  same  doctrine  holds  if  a  person  make  a 
lease  of  his  glebe  for  so  many  years  as  he  shall  continue 
parson  of  Dale,  for  this  is  still  more  uncertain.    But  a  lease 

3.  In  the  United  States  a  month  Stat.  111.,  ch.  74,  sec.  10.  See,  gener- 
generally    means    a    calendar    month,      ally,  1  Bouvier  Law  Diet.  Day. 

See  Rev.  Stat.  111.,  ch.  74,  sec.  10;  2  5.  That    is    certain,    which   can    be 

Bouvier's  Law  Diet.  Month.  made  certain. 

4.  In  computations  of  interest  or  5a.  That  is  as  a  lease  for  years, 
discount  for  less  than  a  month,  the  It  may,  if  accompanied  by  livery  of 
word  day  by  statute  in  Illinois  means  seisin,  ceate  an  estate  for  life. 

the  thirtieth  part  of  a  month.     Rev. 


202  Estates  Less  than  Freehold.  [Book  II. 

for  twenty  or  more  years,  if  J.  S.  shall  so  long  live,  or  if 
he  should  so  long  continue  parson,  is  good.  An  estate  for 
life,  even  if  it  be  pur  outer  vie,^  is  a  freehold,  but  an  estate 
for  a  thousand  years  is  only  a  chattel,  and  reckoned  part 
of  the  personal  estate.'  Hence  it  follows  that  a  lease  for 
years  may  be  made  to  commence  in  futuro/^  though  a  lease 
for  life  cannot.  For  no  estate  of  freehold  [by  a  common- 
law  conveyance]  can  commence  in  futuro,  because  it  cannot 
be  created  at  common  law  without  livery  of  seisin  or  cor- 
poral possession  of  the  land;  and  corporal  possession  can- 
not be  given  of  an  estate  now,  which  is  not  to  commence 
now,  but  hereafter.  [144]  And  because  no  livery  of  seisin 
is  necessary  to  a  lease  for  years,  such  lessee  is  not  said 
to  be  seised,  or  to  have  true  legal  seisin  of  the  lands.  Nor 
indeed  does  the  bare  lease  vest  any  estate  in  the  lessee,  but 
only  gives  him  a  right  of  entry  on  the  tenement,  which  right 
is  called  his  interest  in  the  term,  or  interesse  termini;  but 
when  he  has  actually  so  entered,  and  thereby  accepted  the 
grant,  the  estate  is  then,  and  not  before,  vested  in  him,  and 
he  is  possessed,  not  properly  of  the  land,  but  of  the  term 
of  years,  the  possession  or  seisin  of  the  land  remaining  still 
in  him  who  hath  the  freehold.  Thus  the  word  term  does 
not  merely  signify  the  time  specified  in  the  lease,  but  the 
estate  also  and  interest  that  passes  by  that  lease,  and  there- 
fore the  term  may  expire  during  the  continuance  of  the 
time,  as  by  surrender,  forfeiture,  and  the  like.  For  which 
reason  if  I  grant  a  lease  to  A  for  the  term  of  three  years,, 
and  after  the  expiration  of  the  said  term  to  B  for  six  years,, 
and  A  surrenders  or  forfeits  his  lease  at  the  end  of  one 
year,  B's  interest  shall  immediately  take  effect;  but  if  the 
remainder  had  been  to  B  from  and  after  the  expiration  of 
the  said  three  years,  or  from  and  after  the  expiration  of 
the  said  time,  in  this  case  B's  interest  will  not  commence 
till  the  time  is  fully  elapsed,  whatever  may  become  of  A's 
term. 

6.  For  the  life  of  another.  ment  at  stated  intervals  are  not  un- 

7.  Leases  for  ninety-nine  years  on      common  in  our  large  cities, 
a  stipulated  ground  rent  with  provi-  7a.  In  the  future. 

eions    for    revaluation    and    appraise- 


Chap.  IX.]         Estates  Less  than  Freehold.  203 

Tenant  for  term  of  years  hath  incident  to  and  inseparable 
from  his  estate,  unless  by  special  agreement,  the  same 
estovers  which  we  formerly  observed  that  tenant  for  life 
was  entitled  to ;  that  is  to  say,  house-bote,  fire-bote,  plough- 
bote,  and  hay-bote,  terms  which  have  been  already  ex- 
plained. 

With  regard  to  emblements,  or  the  profits  of  lands  sowed 
by  tenant  for  years,  there  is  this  difference  between  him  and 
tenant  for  life,  that  where  the  term  of  tenant  for  years 
depends  upon  a  certainty,  as  if  he  holds  from  midsummer 
for  ten  years,  and  in  the  last  year  he  sows  a  crop  of  corn 
and  it  is  not  ripe  and  cut  before  midsummer,  the  end  of  his 
terrii,  the  landlord  shall  have  it;  for  the  tenant  knew  the 
expiration  of  his  term,  and  therefore  it  was  his  own  folly 
to  sow  what  he  could  never  reap  the  profits  of.  [145]  But 
where  the  lease  for  years  depends  upon  an  uncertainty,  as 
upon  the  death  of  a  lessor,  being  himself  only  tenant  for 
life,  or  being  a  husband  seised  in  right  of  his  wife,  or  if 
the  term  of  years  be  determinable  upon  a  life  or  lives, — 
in  all  these  cases  the  estate  for  years  not  being  certainly 
to  expire  at  a  time  foreknown,  but  merely  by  the  act  of 
God,  the  tenant,  or  his  executors,  shall  have  the  emblements 
in  the  same  manner  that  a  tenant  for  life  or  his  executors 
shall  be  entitled  thereto.  Not  so  if  it  determine  by  the  act 
of  the  party  himself,  as  if  tenant  for  years  does  anything 
that  amounts  to  a  forfeiture,  in  which  case  the  emblements 
shall  go  to  the  lessor  and  not  to  the  lessee,  who  hath  deter- 
mined his  estate  by  his  own  default.® 

II.  The  second  species  of  estates  not  freehold  are  estates 
at  will.     An  estate  at  will  is  where  lands  and  tenements  are 

8.  See  Hopkins  on  Real  Prop.,   61.  shall    have   the   right   to   remove   the 

"  It  may  be  stated  as  a  general  rule  emblements ;  or  if  the  estate  has  been 

that   every   person   having   an    unoer-  determined    by    reason    of   his    death, 

tain    interest  or   estate   in   land,  and  they  shall  pass  to  his  personal  repre- 

whose  estate  is  determined  by  the  act  sentatives."     Ewell   on   Fixtures    (2d 

of  God,  or  by  the  happening  of  some  Ed.),   "256  and  notes.     A  tenant   at 

uncertain   event   other   than   his   own  sufferance   is   not   entitled   to   emble- 

act,  before  the  severance  of  the  crops  ments.    I^iller  v.  Cheney,  88  Ind.  470, 
plainted    or    sowed    by    him   thereon, 


204  Estates  Less  than  Freehold.  [Book  II. 

let  by  one  man  to  another,  to  have  and  to  hold  at  the  will 
of  the  lessor,  and  the  tenant  by  force  of  this  lease  obtains 
possession.  Such  tenant  hath  no  certain  indefeasible  es- 
tate, nothing  that  can  be  assigned  by  him  to  any  other, 
because  the  lessor  may  determine  his  will  and  put  him  out 
whenever  he  pleases.  But  every  estate  at  will  is  at  the 
will  of  both  parties,  landlord  and  tenant,  so  that  either  of 
them  may  determine  his  will  and  quit  his  connection  with 
the  other  at  his  own  pleasure.  Yet  this  must  be  understood 
with  some  restriction.  For  if  the  tenant  at  will  sows  his 
land,  and  the  landlord,  before  the  corn  is  ripe,  or  before  it 
is  reaped,  puts  him  out  [or  if  the  tenant  dies],  yet  the 
tenant  [or  his  personal  representative  in  case  of  his  death] 
shall  have  the  emblements,  and  free  ingress,  egress,  and 
regress  to  cut  and  carry  away  the  profits.*^  [146]  But  it 
is  otherwise,  and  upon  reason  equally  good,  where  the  ten- 
ant himself  determines  the  will,  for  in  this  case  the  land- 
lord shall  have  the  profits  of  the  land. 

What  act  does,  or  does  not,  amount  to  a  determination 
of  the  will  on  either  side  has  formerly  been  matter  of  great 
debate  in  our  courts.  But  it  is  now,  I  think,  settled  that 
(besides  the  express  determination  of  the  lessor's  will,  by 
declaring  that  the  lessee  shall  hold  no  longer,  which  must 
either  be  made  upon  the  land,  or  notice  must  be  given  to 
the  lessee)  the  exertion  of  any  act  of  ownership  by  the 
lessor, —  as  entering  upon  the  premises  and  cutting  timber, 
taking  a  distress  for  rent  and  impounding  it  thereon,  or 
making  a  feoffment  or  lease  for  years  of  the  land  to  com- 
mence immediately, —  any  act  of  desertion  by  the  lessee,  as 
assigning  his  estate  to  another,  or  committing  waste,  which 
is  an  act  inconsistent  with  such  a  tenure,  or,  which  is  instar 
omnium,^  the  death  or  outlawry  of  either  lessor  or  lessee, 
puts  an  end  to  or  determines  the  estate  at  will. 

The  lessee,  after  the  determination  of  the  lessor's  will, 
shall  have  reasonable  ingress  and  egress  to  fetch  away  his 
goods  and  utensils.  [147]    And  if  rent  be  payable  quarterly 

9.  See   note,   supra;   EweU'on  Fix-  1.  Equal  to  all. 

tuns,  *260  and  notes. 


Chap.  IX.]         Estates  Less  than  Freehold.         *  205 

or  half-yearly,  and  the  lessee  determines  the  will,  the  rent 
shall  be  paid  to  the  end  of  the  current  quarter  or  half  year. 
Courts  of  law  have  of  late  years  leaned  as  much  as  possible 
against  construing  demises,  where  no  certain  term  is  men- 
tioned, to  be  tenancies  at  will,  but  have  rather  held  them 
to  be  tenancies  from  year  to  year^  so  long  as  both  parties 
please,  especially  Avhere  an  annual  rent  is  reserved,  in  which 
case  they  will  not  suffer  either  party  to  determine  the  ten- 
ancy, even  at  the  end  of  the  year,  without  reasonable  notice 
to  the  other,  which  is  generally  understood  to  be  six  months. 

There  is  one  species  of  estates  at  will  that  deserves  a  more  particular 
regard  than_  any  other,  and  that  is  an  estate  held  by  copy  of  court-roll, 
or,  as  we  usually  call  it,  a  copyhold  estate.^  This,  as  was  before  ob- 
served, was  in  its  original  and  foundation  nothing  better  than  a  mere 
estate  at  will.  But  the  kindness  and  indulgence  of  successive  lords  of 
manors  having  permitted  these  estates  to  be  enjoyed  by  the  tenants  and 
their  heirs,  according  to  particular  customs  established  in  their  respec- 
tive districts,  therefore,  though  they  still  are  held  at  the  will  of  the  lord, 
and  so  are  in  general  expressed  in  the  court-rolls  to  be,  yet  that  will 
is  qualified,  restrained,  and  limited  to  be  exerted  according  to  the  cus- 
tom of  the  manor.  This  custom,  being  suiTered  to  grow  up  by  the  lord, 
is  looked  upon  as  the  evidence  and  interpreter  of  his  will.  His  will 
is  no  longer  arbitrary  and  precarious,  but  fixed  and  ascertained  by  the 
custom  to  be  the  same,  and  no  other,  that  has  time  out  of  mind  been 
exercised  and  declared  by  his  ancestors.  A  copyhold  tenant  is  there- 
fore now  full  as  properly  a  tenant  by  the  custom  as  a  tenant  at  will,  the 
custom  having  arisen  from  a  series  of  uniform  wills.  [148] 

Almost  every  copyhold  tenant  being  therefore  thus  tenant  at  the  will 
of  the  lord,  according  to  the  custom  of  the  manor,  such  tenant  may  have, 
so  far  as  the  custom  warrants^  any  other  of  the  estates  or  quantities 
of  interest  which  we  have  hitherto  considered  or  may  hereafter  consider, 
and  hold  them  united  with  this  customary  estate  at  will.  A  copyholder 
may  in  many  manors  be  tenant  in  fee-simple,  in  fee-tail,  for  life,  by  the 
curtesy,  in  dower,  for  years,  at  sufferance,  or  on  condition;  subject, 
however,  to  be  deprived  of  these  estates  upon  the  concurrence  of  those 
circumstances  which  the  will  of  the  lord,  promulgated  by  immemorial 
custom,  has  declared  to  be  a  forfeiture,  or  absolute  determination  of 
those  interests:  as  in  some  manors  the  want  of  issue  male,  in  others  the 
cutting  down  timber,  the  non-payment  of  a  fine,  and  the  like.    Yet  none 

2.  See  Rice's  Modern  Law  of  Real  1  Greenleaf's  Cruise  on  Real  Prop., 
Property    (1897),  349-351  and  notes;       *245. 

3.  Not  applicable  to  this  country. 


206  Estates  Less  than  Fkeehold.  [Book  II. 

of  these  interests  amount  to  a  freehold;  for  the  freehold  of  the  whole 
manor  abides  always  in  the  lord  only,  who  hath  granted  out  the  use  and 
occupation,  but  not  the  corporeal  seisin  or  true  legal  possession,  of  cer- 
tain parcels  thereof  to  these  his  customary  tenants  at  will. 

III.  An  estate  at  sufferance  is  where  one  comes  into  pos- 
session of  land  by  lawful  title,  but  keeps  it  afterwards  with- 
out any  title  at  all.^  [150]  As  if  a  man  takes  a  lease  for  a 
year,  and  after  a  year  is  expired  continues  to  hold  the  prem- 
ises without  any  fresh  leave  from  the  owner  of  the  estate. 
Or  if  a  man  maketh  a  lease  at  will,  and  dies,  the  estate  at 
v,'i\[  is  thereby  determined;  but  if  the  tenant  continueth  pos- 
session, he  is  tenant  at  sufferance.  But  no  man  can  be 
tenant  at  sufferance  against  the  king,  to  whom  no  laches, 
or  neglect,  in  not  entering  and  ousting  the  tenant  is  ever 
imputed  by  law,  but  his  tenant,  so  holding  over,  is  con- 
sidered as  an  absolute  intruder.  But  in  the  case  of  a  sub- 
ject, this  estate  may  be  destroyed  whenever  the  true  owner 
shall  make  an  actual  entry  on  the  lands  and  oust  the  tenant. 
For  before  entry  he  cannot  maintain  an  action  of  trespass 
against  the  tenant  by  sufferance,  as  he  might  against  a 
stranger;  and  the  reason  is  because  the  tenant,  being  once 
in  by  a  lawful  title,  the  law  (which  presumes  no  wrong  in 
any  man)  will  suppose  him  to  continue  upon  a  title  equally 
lawful,  unless  the  owner  of  the  land  by  some  public  and 
avowed  act,  such  as  eritry  is,  will  declare  his  continuance  to 
be  tortious,  or,  in  common  language,  wrongful. 

Landlords  are  obliged  in  these  cases  to  make  formal  en- 
tries upon  their  lands,  and  recover  possession  by  the  legal 
process  of  ejectment,  and  at  the  utmost,  by  the  common  law, 
the  tenant  was  bound  to  account  for  the  profits  of  the  land 
so  by  him  detained.^  [151] 

4.  Rice's  Real  Prop.,  351;  1  Green-  5.  See   Rev.   Stat.  111.,   ch.   80  and 

leaf's   Cruise  on  Real  Prop.    (1856),      other  local  statute*, 
ch.  2.    This  is  a  valuable  treatise  on 
the  common  law  of  real  property. 


Chap.  X.]  Of  Estates  upon  Condition.  207 

CHAPTER  X. 

OF  ESTATES  UPON  CONDITION. 

An  estate  upon  condition  is  such  whose  existence  depends 
upon  the  happening  or  not  happening  of  some  uncertain 
event,  whereby  the  estate  may  be  either  originally  created 
or  enlarged  or  finally  defeated.  [152]  These  conditional 
estates  are  indeed  more  properly  qualifications  of  other 
estates  than  a  distinct  species  of  themselves,  seeing  that 
any  quantity  of  interest,  a  fee,  a  freehold,  or  a  term  of 
years,  may  depend  upon  these  provisional  restrictions. 

Estates,  upon  condition  thus  understood,  are  of  two  sorts: 
1.  Estates  upon  condition  implied;  2.  Estates  upon  condi- 
tion expressed,  under  which  last  may  be  included ;  3.  Estates 
held  in  vadio,  gage,  or  pledge;  4.  Estates  by  statute  mer- 
chant, or  statute  staple;  5.  Estates  held  by  elegit. 

1.  Estates  upon  condition  implied  in  law  are  where  a 
grant  of  an  estate  has  a  condition  annexed  to  it  inseparably 
from  its  essence  and  constitution,  although  no  condition  be 
expressed  in  words.  As  if  a  grant  be  made  to  a  man  of  an 
office,  generally  without  adding  other  words,  the  law  tacitly 
annexes  hereto  a  secret  condition,  that  the  grantee  shall 
duly  execute  his  office,  on  breach  of  which  condition  it  is 
lawful  for  the  grantor  or  his  heirs  to  oust  him  and  grant  it 
to  another  person.  [153]  For  an  office,  either  public  or 
private,  may  be  forfeited  by  mis-user  or  non-user,  both  of 
which  are  breaches  of  this  implied  condition.  Franchises 
also,  being  regal  privileges  in  the  hands  of  a  subject,  are 
held  to  be  granted  on  the  same  condition  of  making  a  proper 
use  of  them,  and  therefore  they  may  be  lost  and  forfeited, 
like  offices,  either  by  abuse  or  by  neglect." 

Upon  the  same  principle  proceed  all  the  forfeitures  which 
are  given  by  law  of  life  estates  and  others  for  any  acts  done 

6.  Neither  offices  nor  franchises  ex-  ever,  a  forfeiture  may  be  enforced  by 

ist  in  the  United  States  in  the  sense  an    information    in    the   nature   of    a 

in  which  the  terms  are  here  used.     In  quo  warranto  or  other  corresponding 

the  case  of  a  corporate  franchise,  how-  proceeding. 


208  Of  Estates  upon  Condition.  [Book  IL 

by  the  tenant  himself  that  are  incompatible  with  the  estate 
which  he  holds.  As,  if  tenants  for  life  or  years  enfeoff  a 
stranger  in  fee-simple,  this  is  by  the  common  law  a  for- 
feiture of  their  several  estates,  being  a  breach  of  the  con- 
dition which  the  law  annexes  thereto,  viz.,  that  they  shall 
not  attempt  to  create  a  greater  estate  than  they  themselves 
are  enitled  to.^ 

n.  An  estate  on  condition  expressed  in  the  grant  itself 
is  where  an  estate  is  granted,  either  in  fee-simple  or  other- 
wise, with  an  express  qualification  annexed,  whereby  the 
estate  granted  shall  either  commence,  be  enlarged,  or  be 
defeated,  upon  performance  or  breach  of  such  qualification 
or  condition.®  [154]  These  conditions  are  therefore  either 
precedent  or  subsequent.  Precedent  are  such  as  must  hap- 
pen or  be  performed  before  the  estate  can  vest  or  be  en- 
larged ;  subsequent  are  such,  by  the  failure  or  non-perform- 
ance of  which  an  estate  already  vested  may  be  defeated.^ 

A  distinction  is  however  made  between  a  condition  in 
deed  and  a  limitation,  which  Littleton  denominates  also  a 
condition  in  law.^  [155]  For  when  an  estate  is  so  expressly 
confined  and  limited  by  the  words  of  its  creation  that  it  can- 
not endure  for  any  longer  time  than  till  the  contingency 
happens  upon  which  the  estate  is  to  fail,  this  is  denominated 
a  limitation,  as  when  land  is  granted  to  a  man  so  long  as  he 
is  parson  of  Dale,  or  ichile  he  continues  unmarried,  or  until 
out  of  the  rents  and  profits  he  shall  have  made  500/,,  and 
Ihe  like.  In  such  case  the  estate  determines  as  soon  as  the 
contingency  happens  (when  he  ceases  to  be  parson,  marries 
a  wife,  or  has  received  the  500/.),  and  the  next  subsequent 
estate,  which  depends  upon  such  determination,  becomes 

7.  As  a  general  rule  in  this  country  9.  Hopkins,  Real  Prop.,   170. 

a  conveyance  passes  no  more  than  the  1.  Mr.  Hopkins  defines  an  estate  on 

grantor  can  lawfully  convey  and  hence  limitation   as   "  one  which  is  created 

no  forfeiture  accrues  in  the  case  stated  to  continue  until  the  happening  of  a 

In  the  text.    As  to  restraints  on  alien-  contingency   upon  which   it   comes  to 

ation  imposed  in  the  deed  creating  the  an  end  without  entry."     "  Conditions 

estate,  see  Hopkins,  Real  Prop.,  394-  cut   short  an  existing  estate.     Limi- 

397.  tations  do  not,  but  mark  its  natural 

8.  Hopkins,  Real  Prop.,  169.  end."     Hopkins,  Real  Prop.,  177,  178. 


Chap.  X.]  Of  Estates  upon  Condition.  209 

immediately  vested  without  any  act  to  be  done  by  him  who 
is  next  in  expectancy.  But  when  an  estate  is,  strictly  speak- 
ing, upon  condition  in  deed  (as  if  granted  expressly  upon 
condition,  to  be  void  upon  the  payment  of  401.  by  the 
grantor,  or  so  that  the  grantee  continues  unmarried,  or  pro- 
vided he  goes  to  York,  &c.),  the  law  permits  it  to  endure 
beyond  the  time  when  such  contingency  happens,  unless  the 
grantor  or  his  heirs  or  assigns  take  advantage  of  the  breach 
of  the  condition,  and  make  either  an  entry  or  a  claim  in 
order  to  avoid  the  estate.^  Yet,  though  strict  words  of  con- 
dition be  used  in  the  creation  of  the  estate,  if  on  breach  of 
the  condition  the  estate  be  limited  over  to  a  third  person, 
and  does  not  immediately  revert  to  the  grantor  or  his  rep- 
resentatives (as  if  an  estate  be  granted  by  A  to  B,  on  con- 
dition that  within  two  years  B  intermarry  with  C,  and  on 
failure  thereof  then  to  D  and  his  heirs),  this  the  law  con- 
strues to  be  a  limitation,  and  not  a  condition.  [156] 

In  all  these  instances  of  limitations  or  conditions  subse- 
quent, it  is  to  be  observed  that  so  long  as  the  condition, 
either  express  or  implied,  either  in  deed  or  in  law,  remains 
unbroken,  the  grantee  may  have  an  estate  of  freehold,  pro- 
vided the  estate  upon  which  such  condition  is  annexed  be 
in  itself  of  a  freehold  nature :  as  if  the  original  grant  express 
either  an  estate  of  inheritance,  or  for  life;  or  no  estate  at 
all,  which  is  constructively  an  estate  for  life.  For,  the 
breach  of  these  conditions  being  contingent  and  uncertain, 
this  uncertainty  preserves  the  freehold,  because  the  estate 
is  capable  to  last  for  ever,  or  at  least  for  the  life  of  the 
tenant,  supposing  the  condition  to  remain  unbroken.  But 
where  the  estate  is  at  the  utmost  a  chattel  interest,  which 
must  determine  at  a  time  certain,  and  may  determine  sooner 
(as  a  grant  for  ninety-nine  years,  provided  A,  B,  and  C,  or 
the  survivor  of  them,  shall  so  long  live),  this  still  continues 
a  mere  chattel,  and  is  not,  by  such  its  uncertainty,  ranked 
among  estates  of  freehold. 

2.  An  entry  to  enforce  a  forfeiture  n  leasehold  estate  where  the  covenants 

for  breach  of  condition  can  be  made  run    with    the   land.      Hopkins,    Real 

only  by  the  grantor  or   his  heirs,  or  Prop.,  176. 
by  the  assignee  of  a  reversion  after 

14 


210  Of  Estates  upon  Condition.  [Book  IL 

These  express  conditions,  if  they  be  impossible  at  the 
time  of  their  creation,  or  afterwards  become  impossible  by 
the  act  of  God  or  the  act  of  the  feoffor  himself,  or  if  they 
be  contrary  to  law  or  repugnant  to  the  nature  of  the  estate, 
are  void.^  In  any  of  which  cases,  if  they  be  conditions  sub- 
sequent, that  is,  to  be  performed  after  the  estate  is  vested, 
the  estate  shall  become  absolute  in  the  tenant.  [157]  For 
he  hath  by  the  grant  the  estate  vested  in  him,  which  shall 
not  be  defeated  afterwards  by  a  condition  either  impossible, 
illegal,  or  repugnant.  But  if  the  condition  be  precedent,  or 
to  be  performed  before  the  estate  vests  as  a  grant  to  a  man, 
that  if  he  kills  another  or  goes  to  Rome  in  a  day  he  shall 
have  an  estate  in  fee,  here,  the  void  condition  being  pre- 
cedent, the  estate  which  depends  thereon  is  also  void,  and 
the  grantee  shall  take  nothing  by  the  grant,  for  he  hath 
no  estate  until  the  condition  be  performed. 

There  are  some  estates  defeasible  upon  condition  subse- 
quent, that  require  a  more  peculiar  notice;  such  are: — 

III.  Estates  held  in  vadio,  in  gage  or  pledge,  which  are 
of  two  kinds,  vivium  vadium,  or  living  pledge,  and  mortuum 
vadium,  dead  pledge,  or  mortgage. 

ViTum  yadinm,  or  living  pledge,  is  when  a  man  borrows  a  sum  (sup- 
pose 200^)  of  another,  and  grants  him  an  estate,  as  of  20'.  per  annum, 
to  hold  till  the  rents  and  profits  shall  repay  the  sum  so  borrowed.  This 
is  an  estate  conditioned  to  be  void  as  soon  as  such  sum  is  raised.  And 
in  this  case  the  land  or  pledge  is  said  to  be  living,  it  subsists  and  sur- 
vives the  debt,  and  immediately  on  the  discharge  of  that,  results  back 
to  the  borrower. 

Mortuum  vadium,  a  dead  pledge  or  mortgage  (which  is 
much  more  common  than  the  other),  is  where  a  man  bor- 
rows of  another  a  specific  sum  (e.  g.  2001.)  and  grants  him 
an  estate  in  fee,  on  condition  that  if  he,  the  mortgagor,  shall 
repay  the  mortgagee  the  said  sum  of  2001.  on  a  certain  day 
mentioned  in  the  deed,  that  then  the  mortgagor  may  re- 

3.  Hopkins,  Real  Prop.,  172,  173. 
See,  generally,  Lind.  Int.  to  Jur.  App. 
iaii. 


Chap.  X.]  Of  Estates  upon  Condition.  '        211 

enter  on  the  estate  so  granted  in  pledge ;  or,  as  is  now  the 
more  usual  way,  that  then  the  mortgagee  shall  re-convey 
the  estate,  to  the  mortgagor.  In  this  case  the  land  which 
is  so  put  in  pledge  is  by  law,  in  case  of  non-payment  at  the 
time  limited,  forever  dead  and  gone  from  the  mortgagor, 
and  the  mortgagee's  estate  in  the  lands  is  then  no  longer 
conditional,  but  absolute.  [158]  But  so  long  as  it  continues 
conditional,  that  is  between  the  time  of  lending  the  money 
and  the  time  allotted  for  payment,  the  mortgagee  is  called 
tenant  in  mortgage. 

As  soon  as  the  estate  is  created,  the  mortgagee  may  im- 
mediately enter  on  the  lands,  but  is  liable  to  be  dispossessed 
upon  performance  of  the  condition  by  payment  of  the  mort- 
gage-money at  the  day  limited.  And  therefore  the  usua.l 
way  is  to  agree  that  the  mortgagor  shall  hold  the  land  till 
the  day  assigned  for  payment,  when,  in  case  of  failure 
whereby  the  estate  becomes  absolute,  the  mortgagee  may 
enter  upon  it  and  take  possession,  without  any  possibility 
at  law  of  being  afterwards  evicted  by  the  mortgagor,  to 
whom  the  land  is  now  forever  dead.  But  here  again  the 
courts  of  equity  interpose,  and  though  a  mortgage  be  thus 
forfeited,  and  the  estate  absolutely  vested  in  the  mortgagee 
at  the  common  law,  yet  they  will  consider  the  real  value  of 
the  tenements  compared  with  the  sum  borrowed.  [159] 
And  if  the  estate  be  of  greater  value  than  the  sum  lent 
thereon,  they  will  allow  the  mortgagor  at  any  reasonable 
time  to  recall  or  redeem  his  estate,  paying  to  the  mortgagee 
his  principal,  interest,  and  expenses.  This  reasonable  ad- 
vantage allowed  to  mortgagors  is  called  the  equity  of  re- 
demption, and  this  enables  a  mortgagor  to  call  on  the  mort- 
gagee who  has  possession  of  his  estate  to  deliver  it  back 
and  account  for  the  rents  and  profits  received  on  payment 
of  his  whole  debt  and  interest,  thereby  turning  the  mortuum 
into  a  kind  of  viviiim  vadium.  But,  on  the  other  hand,  the 
mortgagee  may  either  compel  the  sale  of  the  estate,  in  order 
to  get  the  whole  of  his  money  immediately,  or  else  call  upon 
the  mortgagor  to  redeem  his  estate  presently,  or  in  default 


212 


Of  Estates  upon  Condition. 


[Book  II. 


thereof  to  be  forever  foreclosed  from  redeeming  the  same, 
that  is,  to  lose  his  equity  of  redemption  without  possibility 
of  recall.^ 


IV.  A  fourth  species  of  estates,  defeasible  on  condition  subsequent, 
are  those  held  by  statute  merchant  and  statute  staple,  which  are  very 
nearly  related  to  the  vivum  radium  before  mentioned,  or  estate  held  till 
the  profits  thereof  ~«hall  discharge  a  debt  liquidated  or  ascertained.  [Not 
in  use  in  the  United  Stales.]  For  both  the  statute  merchant  and  statue 
staple  are  securities  for  money:  the  one  entered  into  before  the  chief 
magistrate  of  some  trading  town,  pursuant  to  the  statute  13  Edw.  I. 
de  nvercatoribus,^  and  thence  called  a  statute  merchant;  the  other  pur- 
suant to  the  statute  27  Edw.  III.  c.  9,  before  the  mayor  of  the  staple, — 
that  is  to  say,  the  grand  mart  for  the  principal  commodities  or  manu- 
factures of  the  kingdom,  formerly  held  by  act  of  parliament  in  certain 
trading  towns,  from  whence  this  security  is  called  a  statute  staple. 
They  are  both,  I  say,  securities  for  debts  acknowledged  to  be  due,  and 


4.  The  lori'going  is  a  brief  and  ac- 
curate statement  of  the  law  as  it  ex- 
isted  in  tlie  author's  time. 

A  real  estate  mortgage  is  a  convey- 
ance of  land  as  security  for  the  per- 
formance of  a  promisp,  usually, 
though  not  necessarily,  the  payment 
of  mon<>y;  and  is  usually  in  the  form 
of  an  estate  on  condition  subsequent 
expressed  in  the  deed,  tliough  in 
equity  a  deed  absolute  on  its  face  will 
as  between  the  parties  thereto  be  held 
to  be  a  mortgage,  if  such  was  the 
agreement.  Hopkins,  Real  Prop.,  180, 
187. 

Two  views  are  lield  in  the  different 
states  as  to  the  nature  of  a  mortgage: 
(1)  The  common  law  tlicory  that  a 
mortgage  is  an  estate  in  land  and 
that  the  mortgagee  is  the  owner  of 
the  land;  (2)  The  equitable  theory 
that  a  mortgage  is  a  mere  security 
and  that  the  mortgagee  has  only  a 
lien  on  the  land.  The  mortgagor's 
equity  of  redemption  is  recognized  in 
all  the  states.  Hopkins,  Real  Prop., 
182-184. 


Tiie  mortgagee  is  entitled  to  pos- 
session unless  otherwise  provided  by 
statute,  as  in  many  states,  or  by 
agreement,  which  may  be  express  or 
iinpled.     Hopkins,  Real  Prop.,   196. 

The  methods  of  foreclosure  vary  in 
tlie  different  slates,  as  by  entry,  writ 
of  entry,  or  ejectment  to  recover  the 
possession  of  tlie  land,  or  by  proceed- 
ings in  equity  to  bar  the  equity  of 
redemption.  In  some  of  the  sta'es  a 
strict  foreclosure  or  bar  of  the  equity 
of  redemption  is  decreed;  but  in  most 
of  the  states  a  sale  of  the  land  is 
decreed  and  the  surplus,  if  any,  after 
payment  of  the  debt,  interest  and 
costs,  is  returned  to  the  mortgagor. 
In  some  states  besides  a  judicial  fore- 
closui'e  tliere  may  also  be  a  sale  by 
virtue  of  a  power  of  sale,  if  such  there 
be,  in  the  mortgage.  See  Hopkins, 
Real  Prop.,  242-250,  and  the  local 
statutes.  See,  generally,  Jones  on 
Mortgages  (1904),  2  vols.;  Wiltsie 
on  Mortgage  Foreclosure  (1913),  2 
vols. 

6.  Concerning  merchants. 


Chap,  X.]  Of  Estates  tjpois  Condition.  213 

originally  permitted  only  among  traders  for  the  benefit  of  commerce, 
whereby  not  only  the  body  of  the  debtor  may  be  imprisoned  and  his 
goods  seized  in  satisfaction  of  the  debt,  but  also  his  lands  may  be  de- 
livered to  the  creditor  till  out  of  the  rents  and  profits  of  them  the  debt 
may  be  satisfied;  and  during  such  time  as  the  creditor  so  holds  the 
lands  he  is  tenant  by  statute  merchant  or  statute  staple.  There  is  also 
a  similar  security, — the  recognizance  in  the  nature  of  a  statute  staple, 
acknowledged  before  either  of  the  chief  justices  or  (out  of  term)  before 
their  substitutes,  the  Mayor  of  the  Staple  at  Westminster  and  the  Re- 
corder of  London, — whereby  the  benefit  of  this  mercantile  transaction  is 
extended  to  all  the  king's  subjects  in  general,  by  virtue  of  the  statute 
23  Hen.  VIII.  c.  6,  amended  by  8  Geo.  I.  c.  25,  which  directs  such  recog- 
nizances to  be  enrolled  and  certified  into  chancery.  But  these  by  the 
statute  of  frauds,  29  Car.  II.  c.  3,  are  only  binding  upon  the  lands  in  the 
hands  of  bona  fide  ^  purchasers  from  the  day  of  their  enrolment,  which  i3 
ordered  to  be  marked  on  the  record. 

V.  Another  similar  conditional  estate,  created  by  operation  of  law  for 
security  and  satisfaction  of  debts,  is  called  an  estate  by  elegit.  [161] 
What  an  elegit  is,  and  why  so  called,  will  be  explained  in  the  third  part 
of  these  Commentaries.  At  present  I  need  only  mention  that  it  is  the 
name  of  a  writ  founded  on  the  statute  of  Westm.  2,  by  which,  after  a 
plaintifi'  has  obtained  judgment  for  his  debt  at  law,  the  sheriff  gives  him 
possession  of  one-half  of  the  defendant's  lands  and  tenements,  to  be  oc- 
cupied and  enjoyed  until  his  debt  and  damages  are  fully  paid,  and  dur- 
ing the  time  he  so  holds  them  he  is  called  tenant  by  elegit.' 

6.  In  good  faith.  that  it  may   be  still  in  use   in  some 

7.  A  writ  of  execution.     See  1  Bon-      of  the  states,  but  we  know  of  none, 
vier  Law  Diet,  elegit.     It  is  possible 


214  Op  Estates  in  Possession.  [Book  II. 

CHAPTER  XL 

OP  ESTATES  IN  POSSESSION,  KEMAINDEE,  AND  REVERSION. 

Estates  with  respect  to  the  time  of  their  enjoyment  may 

either  be  in  possession  or  in  expectancy ;  and  of  expectancies 
there  are  two  sorts:  one  created  by  the  act  of  the  parties, 
called  a  remainder;  the  other  by  act  of  law,  and  called  a 
reversion.  [163] 

I.  Of  estates  in  possession  (which  are  sometimes  called 
estates  executed,  whereby  a  present  interest  passes  to  and 
resides  in  the  tenant  not  depending  on  any  subsequent  cir- 
cumstance or  contingency,  as  in  the  case  of  estate  execu- 
tory), there  is  little  or  nothing  peculiar  to  be  observed.  All 
the  estates  we  have  hitherto  spoken  of  are  of  this  kind. 

II.  An  estate  in  remainder^  may  be  defined  to  be  an  estate 
limited  to  take  effect  and  be  enjoyed  after  another  estate 
is  determined.  As  if  a  man  seised  in  fee-simple  granteth 
lands  to  A  for  twenty  years,  and,  after  the  determination 
of  the  said  term,  then  to  B  and  his  heirs  forever.  Here  A 
is  tenant  for  years,  remainder  to  B  in  fee.  [164]  In  the 
first  place,  an  estate  for  years  is  created  or  carved  out  of 
the  fee  and  given  to  A,  and  the  residue  or  remainder  of  it 
is  given  to  B.  Both  these  interests  are  in  fact  only  one 
estate,  the  present  term  of  years  and  the  remainder  after- 
wards, when  added  together,  being  equal  only  to  one  estate 
in  fee.  And  hence  also  it  is  easy  to  collect,  that  no  re- 
mainder can  be  limited  after  the  grant  of  an  estate  in  fee- 
simple,  because  a  fee-simple  is  the  highest  and  largest  estate 
that  a  subject  is  capable  of  enjoying,  and  he  that  is 
tenant  in  fee  hath  in  him  the  ivhole  of  the  estate.  A  re- 
mainder, therefore,  which  is  only  a  portion,  or  residuary 
part,  of  the  estate,  cannot  be  reserved  after  the  whole  is 
disposed  of. 

1.  And,  first,  there  must  necessarily  be  some  particular 

1.  For  a  general  consideration  of  289  and  cases  cited.  Consult  also  the 
the  American  law  of  vested  remain-  local  statutes  modifying  the  common 
ders,   see   Hopkins,   Real   Prop.,   281-      law  rules  so  well  stated  in  the  text. 


Chap.  XI.]  Of  Estates  in  Remainder.  215 

estate  precedent  to  the  estate  in  remainder .^  [165]  As  an 
estate  for  years  to  A,  remainder  to  B  for  life ;  or  an  estate 
for  life  to  A,  remainder  to  B  in  tail.  This  precedent  estate 
is  called  the  particular  estate,  as  being  only  a  small  part 
or  particula  of  the  inheritance,  the  residue  or  remainder  of 
which  is  granted  over  to  another.  The  necessity  of  creating 
this  preceding  particular  estate,  in  order  to  make  a  good 
remainder,  arises  from  this  plain  reason :  that  remainder 
is  a  relative  expression,  and  implies  that  some  part  of  the 
thing  is  previously  disposed  of;  for  where  the  whole  is  con- 
veyed at  once,  there  cannot  possibly  exist  a  remainder,  but 
the  interest  granted,  whatever  it  be,  will  be  an  estate  in 
possession. 

An  estate  created  to  commence  at  a  distant  period  of  time, 
without  any  intervening  estate,  is  therefore  properly  no 
remainder;  it  is  the  whole  of  the  gift,  and  not  a  residuary 
part.  And  such  future  estates  can  only  be  made  of  chattel 
interests,  which  were  considered  in  the  light  of  mere  con- 
tracts by  the  ancient  law,  to  be  executed  either  now  or  here- 
after as  the  contracting  parties  should  agree.  But  an  es- 
tate of  freehold  must  be  created  to  commence  immediately; 
for  it  is  an  ancient  rule  of  the  common  law  that  an  estate 
of  freehold  cannot  be  created  [i.  e.,  by  a  common-law  con- 
veyance] to  commence  in  futuro,^  but  it  ought  to  take  effect 
presently  either  in  possession  or  remainder,  because  at 
common  law  no  freehold  in  lands  could  pass  without  livery 
of  seisin,  which  must  operate  either  immediately  or  not  at 
all.  [166]  So  that  when  it  is  intended  to  grant  an  estate 
of  freehold,  whereof  the  enjoyment  shall  be  deferred  till  a 
future  time,  it  is  necessary  to  create  a  previous  particular 
state,  which  may  subsist  till  that  period  of  time  is  com- 
pleted, and  for  the  grantor  to  deliver  immediate  possession 
of  the  land  to  the  tenant  of  this  particular  estate,  which  is 
construed  to  be  giving  possession  to  him  in  remainder,  since 
his  estate  and  that  of  the  particular  tenant  are  one  and  the 
same  estate  in  law;  as,  where  one  leases  to  A  for  three 
years,  with  remainder  to  B  in  fee,  and  makes  livery  of 
seisin  to  A. 

2.  Hopkins,  Real  Prop.,  284.  3.  In  the  future. 


216  Of  Estates  in  Remainder.  [Book  IT. 

As  no  remainder  can  be  created  without  such  a  precedent 
particular  estate,  therefore  the  particular  estate  is  said  to 
support  the  remainder.  But  a  lease  at  will  is  not  held  to 
be  such  a  particular  estate  as  will  support  a  remainder 
over.  Every  remainder  must  be  part  of  one  and  the  same 
estate,  out  of  which  the  preceding  particular  estate  is  taken. 
[167]  And  hence  it  is  generally  true,  that  if  the  particular 
estate  is  void  in  its  creation,  or  by  any  means  is  defeated 
afterwards,  the  remainder  supported  thereby  shall  be  de- 
feated also;  as,  where  the  particular  estate  is  an  estate  for 
the  life  of  the  person  not  in  esse,  or  an  estate  for  life  upon 
condition,  on  breach  of  which  condition  the  grantor  enters 
and  avoids  the  estate.  In  either  of  these  cases  the  re- 
mainder over  is  void. 

2.  The  remainder  must  commence  or  pass  out  of  the 
grantor  at  the  time  of  the  creation  of  the  particular  estate; 
as,  where  there  is  an  estate  to  A  for  life,  with  remainder 
to  B  in  fee.  Here  B's  remainder  in  fee  passes  from  the 
grantor  at  the  same  time  that  seisin  is  delivered  to  A  of 
his  life  estate  in  possession.  And  it  is  this  which  induces 
the  necessity  at  common  law  of  livery  of  seisin  being  made 
on  the  particular  estate  whenever  a  freehold  remainder  is 
created.  For  if  it  be  limited  even  on  an.  estate  for  years 
it  is  necessary  that  the  lessee  for  years  should  have  livery 
of  seisin,  in  order  to  convey  the  freehold  from  and  out  of 
the  grantor,  otherwise  the  remainder  is  void.  Not  that  the 
livery  is  necessary  to  strengthen  the  estate  for  years,  but 
as  livery  of  the  land  is  requisite  to  convey  the  freehold,  and 
yet  cannot  be  given  to  him  in  remainder  without  infringing 
the  possession  of  the  lessee  for  years,  therefore  the  law 
allows  such  livery  made  to  the  tenant  of  the  particular  estate 
to  relate  and  inure  to  him  in  remainder,  as  both  are  but  one 
estate  in  law. 

3.  The  remainder  must  vest  in  the  grantee  during  the 
continuance  of  the  particular  estate,  or  eo  instanti^  that  it 
determines.  [168]  Thus,  if  an  estate  be  limited  to  A  for 
life,  remainder  to  the  eldest  son  of  B  in  tail,  and  A  dies 
before  B  hath  any  son,  here  the  remainder  will  be  void,  for 

4.  At  that  instant. 


CiiAP.  XI.]  Of  Estates  in  Kemaindeb.  •  217 

it  did  not  vest  in  any  one  during  the  continuance  nor  at 
the  determination  of  the  particular  estate;  and  even  sup- 
posing that  B  should  afterwards  have  a  son,  he  shall  not 
take  by  this  remainder,  for  as  it  did  not  vest  at  or  before 
the  end  of  the  particular  estate,  it  never  can  vest  at  all,  but 
is  gone  forever.  And  this  depends  upon  the  principle  be- 
fore laid  down,  that  the  precedent  particular  estate  and  the 
remainder  are  one  estate  in  law;  they  must  therefore  sub- 
sist and  be  m  esse  at  one  and  the  same  instant  of  time, 
either  during  the  continuance  of  the  first  estate,  or  at  the 
very  instant  when  that  determines,  so  that  no  other  estate 
can  possibly  come  between  them. 

It  is  upon  these  rules,  but  principally  the  last,  that  the 
doctrine  of  contingent  remainders  depends.  For  remainders 
are  either  vested  or  contingent.  Vested  remainders  (or  re- 
mainders executed,  whereby  a  present  interest  passes  to  the 
party,  though  to  be  enjoyed  in  futuroY  are  where  the  estate 
is  invariably  fixed  to  remain  to  a  determinate  person,  after 
the  particular  estate  is  spent.  As  if  A  be  tenant  for  twenty 
years,  remainder  to  B  in  fee :  here  B's  is  a  vested  remainder, 
which  nothing  can  defeat  or  set  aside.®  [169] 

Contingent  or  executory  remainders  (whereby  no  present 
interest  passes)  are  where  the  estate  in  remainder  is  limited 
to  take  effect  either  to  a  dubious  and  uncertain  person,  or 
upon  a  dubious  and  uncertain  event;  so  that  the  particular 
estate  may  chance  to  be  determined,  and  the  remainder 
never  take  effect.^ 

First,  they  may  be  limited  to  a  dubious  and  uncertain 
person.  As  if  A  be  tenant  for  life,  w^ith  remainder  to  B's 
eldest  son  (then  unborn)  in  tail,  this  is  a  contingent  re- 
mainder, for  it  is  uncertain  whether  B  will  have  a  son  or  no ; 
but  the  instant  that  a  son  is  born  the  remainder  is  no  longer 
contingent,  but  vested.  Though  if  A  had  died  before  the 
contingency  happened,  that  is,  before  B  's  son  was  born,  the 
remainder  would  have  been  absolutely  gone,  for  the  par- 
ticular estate  was  determined  before  the  remainder  could 
vest. 

5.  In  the  future.  7.  Hopkins,  Real  Prop.,  289. 

6.  See    Hopkins,    Real    Prop,,    288, 
289. 


218  Of  Estates  IN  Remainder.  [Book  II. 

Nay,  by  the  strict  rule  of  law,  if  A  were  tenant  for  life,  remainder  to 
his  eldest  son  in  tail,  and  A  died  without  issue  born,  but  leaving  his  wife 
enseint,  or  big  with  child,  and  after  his  death  a  posthumous  son  was  born, 
this  son  could  not  take  the  land  by  virtue  of  this  remainder,  for  the 
particular  estate  determined  before  there  was  any  person  in  ess'',s  in 
whom  the  remainder  could  vest.  But  to  remedy  thid  hardship,  it  is  en- 
acted by  statute  10  &  11  W.  III.  c.  16,  that  posthumous  children  shall 
be  capable  of  taking  in  remainder  In  the  same  manner  as  if  they  had 
been  born  in  their  father's  lifetime,  that  is,  the  remainder  is  allowed  to 
vest  in  them  while  yet  in  their  mother's  womb.* 

This  species  of  contingent  remainders  to  a  person  not  in 
being  must,  however,  be  limited  to  some  one  that  may,  by 
common  possibility  or  potentia  propinqua,^  be  in  esse  at  or 
before  the  particular  estate  determines.  As  if  an  estate 
be  made  to  A  for  life,  remainder  to  the  heirs  of  B :  now  if 
A  dies  before  B,  the  remainder  is  at  an  end ;  for  during  B  's 
life  he  has  no  heir,  nemo  est  haeres  viventis;  but  if  B  dies 
first,  the  remainder  then  immediately  vests  in  his  heir,  who 
l^ill  be  entitled  to  the  land  on  the  death  of  A.  [170]  This 
is  a  good  contingent  remainder,  for  the  possibility  of  B's 
dying  before  A  is  potentia  propinqiia,  and  therefore  allowed 
inlaw.  But  a  remainder  to  the  right  heirs  of  B  (if  there 
be  no  such  person  as  B  in  esse),  is  void.  For  here  there 
must  two  contingencies  happen :  first,  that  such  a  person  as 
B  shall  be  born,  and  secondly,  that  he  shall  also  die  during 
the  continuance  of  the  particular  estate^  which  make  it 
potentia  remotissima,^  a  most  improbable  possibility.  A 
remainder  to  a  man's  eldest  son,  who  hath  none  (we  have 
seen)  is  good,  for  by  common  possibility  he  may  have  one; 
but  if  it  be  limited  in  particular  to  his  son  John  or  Richard, 
it  is  bad,  if  he  have  no  son  of  that  name,  for  it  is  too  remote 
a  possibility  that  he  should  not  only  have  a  son,  but  a  son 
of  a  particular  name.  A  limitation  of  a  remainder  to  a 
-  bastard  before  it  is  born  is  not  good,  for  though  the  law 
allows  the  possibility  of  having  bastards,  it  presumes  it  to 
be  a  very  remote  and  improbable  contingency.     Thus  may 

8.  In  being.  1.  A  near  possibility. 

9.  Hopkins,  Real  Prop.,  290.    So  by  2.  A  very  remote  possibility, 
statute  in  some  states.     Id.;   1  Stim. 

Am,  St.  Law,  §  1413. 


Chap.  XI.]  Of  Estates  in  Remainder.  219 

a  remainder  be  contingent  on  account  of  the  uncertainty  of 
the  person  who  is  to  take  it. 

A  remainder  may  also  be  contingent,  where  the  person 
to  whom  it  is  limited  is  fixed  and  certain,  but  the  event 
upon  which  it  is  to  take  effect  is  vague  and  uncertain.  As, 
where  land  is  given  to  A  for  life,  and  in  case  B  survives 
him,  then  with  remainder  to  B  in  fee.  Here  B  is  a  certain 
person,  but  the  remainder  to  him  is  a  contingent  remainder, 
depending  ui)on  a  dubious  event,  the  uncertainty  of  his 
surviving  A.  During  the  joint  lives  of  A  and  B  it  is  con- 
tingent, and  if  B  dies  first,  it  never  can  vest  in  his  heirs, 
but  is  forever  gone;  but  if  A  dies  first  the  remainder  to  B 
becomes  vested. 

Contingent  remainders  of  either  kind,  if  they  amount  to 
a  freehold,  cannot  be  limited  on  an  estate  for  years,  or  any 
other  particular  estate  less  than  a  freehold.^  [171]  Thus 
if  land  be  granted  to  A  for  ten  years,  with  remainder  in  fee 
to  the  right  heirs  of  B,  this  remainder  is  void,  but  if  granted 
to  A  for  life,  with  a  like  remainder,  it  is  good.  For  unless 
the  freehold  passes  out  of  the  grantor  at  the  time  when  the 
remainder  is  created,  such  freehold  remainder  is  void;  it 
cannot  pass  out  of  him  without  vesting  somewhere ;  and  in 
the  case  of  a  contingent  remainder  it  must  vest  in  the  par- 
ticular tenant,  else  it  can  vest  nowhere.  Unless,  therefore, 
the  estate  of  such  particular  tenant  be  of  a  freehold  nature, 
the  freehold  cannot  vest  in  him,  and  consequently  the  re- 
mainder is  void. 

Contingent  remainders  may  be  defeated  by  destroying 
or  determining  the  particular  estate  upon  which  they  de- 
pend, before  the  contingency  happens  whereby  they  become 
vested.^  Therefore,  when  there  is  tenant  for  life,  with 
divers  remainders  in  contingency,  he  may,  not  only  by  his 
death,  but  by  alienation,  surrender,  or  other  methods,  de- 
stroy and  determine  his  own  life  estate  before  any  of  those 
remainders  vest,  the  consequence  of  which  is  that  he  utterly 

3.  Hopkins,  Real  Prop.,  291.  of    the    particular    estate    before    tlie 

4.  In  many  states  statutes  provide  vesting  of  the  remainder  shall  not 
that  the  acts  of  the  tenant  of  the  defeat  the  remainder.  Hopkins,  Real 
particular  estate  shall  not  defeat  the  Prop.,  294;  1  Stim.  Am.  St.  Law,  §§ 
remainder;   and  that  the  termination  1403,   1426. 


220  Of  Estates  in  Remainder.  [Book  II. 

defeats  them  all.  In  these  cases,  therefore,  it  is  necessary 
to  have  trustees  appointed  to  perserve  the  contingent  re- 
mainders, in  whom  there  is  vested  an  estate  in  remainder 
for  the  life  of  the  tenant  for  life,  to  commence  when  his 
estate  determines. 

In  devises  by  last  will  and  testament  (which,  being  often 
drawn  up  when  the  party  is  inops  consilii,^  are  always  more 
favored  in  construction  than  formal  deeds,  which  are  pre- 
sumed to  be  made  with  great  caution,  forethought,  and  ad- 
vice) remainders  may  be  created  in  some  measure  contrary 
to  the  rules  before  laid  down,  though  our  lawyers  will  not 
allow  such  dispositions  to  be  strictly  remainders,  but  call 
them  by  another  name,  that  of  executory  devises,  or  devises 
hereafter  to  be  executed.  [172] 

An  executory  devise  of  lands  is  such  a  disposition  of  them 
by  will  that  thereby  no  estate  vests  at  the  death  of  the 
devisor,  but  only  on  some  future  contingency.  It  differs 
from  a  remainder  in  three  very  material  points:  1.  That 
it  needs  not  any  particular  estate  to  support  it.  2.  That 
by  it  a  fee-simple,  or  other  less  estate,  may  be  limited  after 
a  fee-simple.  [173]  3.  That  by  this  means  a  remainder 
may  be  limited  of  a  chattel  interest,  after  a  particular  estate 
for  life  created  in  the  same.*^ 

1.  The  first  case  happens  when  a  man  devises  a  future 
estate  to  arise  upon  a  contingency,  and,  till  that  contingency 
happens,  does  not  dispose  of  the  feesimple,  but  leaves  it  to 
descend  to  his  heirs  at  law.  As  if  one  devises  land  to  a 
feme-sole  and  her  heirs,  upon  her  day  of  marriage:  here 
is  in  effect  a  contingent  remainder  without  any  particular 
estate  to  support  it,  a  freehold  commencing  in  futuroJ 
This  limitation,  though  it  would  be  void  in  a  deed,  yet  is 
good  in  a  will  by  way  of  executory  devise.  For  since  by  a 
devise  a  freehold  may  pass  without  corporal  tradition  or 
livery  of  seisin  (as  it  must  do  if  it  passes  at  all),  therefore 
it  may  commence  in  fiituro,  because  the  principal  reason 
why  it  cannot  commence  in  fnUiro  in  other  cases,  is  the 
necessitj^  of  actual  seisin,  which  always  operates  in  prae- 

5.  Lacking  counsel.  7.  In  the  future. 

6.  Hopkins,  Real  Trop.,  300. 


Chap.  XL]  Of  Estates  in  Remainder.  221 

senti.^  And,  since  it  may  thus  commence  in  futuro,  there 
is  no  need  of  a  partlcuiar  estate  to  support  it,  the  only  use 
of  which  is  to  make  the  remainder  by  its  unity  with  the 
particular  estate  a  present  interest.  And  hence  also  it  fol- 
lows that  such  an  executory  devise,  not  being  a  present  in- 
terest, cannot  be  barred  by  a  recovery  suffered  before  it 
commences. 

2.  By  executory  devise,  a  fee,  or  other  less  estate,  may 
.be  limited  after  a  fee.  And  this  happens  where  a  devisor 
devises  his  whole  estate  in  fee,  but  limits  a  remainder 
thereon  to  commerce  on  a  future  contingency.  As  if  a  man 
devises  land  to  A  and  his  heirs;  but  if  he  dies  before  the 
age  of  twenty-one,  then  to  B  and  his  heirs;  this  remainder, 
though  void  in  deed,  is  good  by  way  of  executory  devise. 
But,  in  both  these  species  of  executory  devises,  the  contin- 
gencies ought  to  be  such  as  may  happen  within  a  reason- 
able time;  as  within  one  or  more  life  or  lives  in  being,  or 
within  a  moderate  term  of  years,  for  courts  of  justice  will 
not  indulge  even  wills,  so  as  to  create  a  perpetuity,  which 
the  laws  abhors.  [174]  The  utmost  length  that  has  been 
hitherto  allowed  for  the  contingency  of  an  executory  devise 
of  either  kind  to  happen  in,  is  that  of  a  life  or  lives  in  being, 
and  one  and  twenty  years  afterwards.*^ 

3.  By  executory  devise  a  term  of  years  may  be  given  to 
one  man  for  his  life,  and  afterwards  limited  over  in  re- 
mainder to  another,  which  could  not  be  done  by  deed;  for 
by  law  the  first  grant  of  it  to  a  man  for  life  was  a  total  dis- 

.  position  of  the  whole  term,  a  life  estate  being  esteemed  of 
a  higher  and  larger  nature  than  any  term  of  years.  Yet, 
in  order  to  prevent  the  danger  of  perpetuities,  it  was  settled 
that  though  such  remainders  may  be  limited  to  as  many 
persons  successively  as  the  devisor  thinks  proper,  yet  they 

8.  In  the  present.  as  in  being  for  the  purpose  of  taking, 

9.  This  rule  prevails,  generally,  in  it  is  possible  that  three  periods  of 
the  United  States,  except  that  in  some  gestation  may  occur  in  a  limitation 
states  all  future  estates  must  vest  without  violation  of  the  rule.  See 
within  two  lives  in  being.  Hopkins,  Hopkins,  Real  Prop.,  324,  note;  Gray, 
Real  Prop.,  322-330;  Gray,  Perp.,  144;  Perp.,  §  222;  Thelluson  T.  Woodford, 
1  Stim.  Am.  St.  Law.  §§   1440,  1442.  11  Ves.  112. 

An   unborn  child  being  considered 


222  Of  Estates  in  Reversion.  [Book  II. 

must  all  be  in  esse  during  the  life  of  the  first  devisee,  for  then 
all  the  candles  are  lighted  and  are  consuming  together,  and 
the  ultimate  remainder  is  in  reality  only  to  that  remainder- 
man who  happens  to  survive  the  rest.  And  it  was  also 
settled  that  such  remainder  may  not  be  limited  to  take  effect 
unless  upon  such  contingency  as  must  happen  (if  at  all) 
during  the  life  of  the  first  devisee.  [175] 

III.  An  estate  in  reversion  is  the  residue  of  an  estate  left 
in  the  grantor,  to  commence  in  possession  after  the  determi- 
nation of  some  particular  estate  granted  out  by  him.  Sir 
Edward  Coke  describes  a  reversion  to  be  the  returning  of 
land  to  the  grantor  or  his  heirs  after  the  grant  is  over.  As, 
if  there  be  a  gift  in  tail,  the  reversion  of  the  fee  is,  without 
any  special  reservation,  vested  in  the  donor  by  act  of  law. 
And  so  also  the  reversion,  after  an  estate  for  life,  years,  or 
at  will,  continues  in  the  lessor.  For  the  fee-simple  of  all 
lands  must  abide  somewhere;  and  if  he  who  was  before 
possessed  of  the  whole  carves  out  of  it  any  smaller  estate 
and  grants  it  away,  whatever  is  not  so  granted  remains  in 
him.  A  reversion  is  never,  therefore,  created  by  deed  or 
writing,  but  arises  from  construction  of  law;  a  remainder 
can  never  be  limited,  unless  by  either  deed  or  devise.  But 
both  are  equally  transferable,  when  actually  vested,  being 
both  estates  in  praesenti,^  though  taking  effect  in  futuro.^ 

The  usual  incidents  to  reversions  are  said  to  be  fealty 
and  rent.^'^  [176]  When  no  rent  is  reserved  on  the  par- 
ticular estate,  fealty  however  results  of  course,  as  an  inci- 
dent quite  inseparable,  and  may  be  demanded  as  a  badge  of , 
tenure,  or  acknowledgment  of  superiority,  being  frequently 
the  only  evidence  that  the  lands  are  holden  at  all.  Where 
rent  is  reserved  it  is  also  incident,  though  not  inseparably 
so,  to  the  reversion.  The  rent  may  be  granted  away,  re- 
serving the  reversion,  and  the  reversion  may  be  granted 
away,  reserving  the  rent,  by  special  words ;  but  by  a  general 
grant  of  the  reversion,  the  rent  will  pass  with  it  as  incident 

1.  In  the  present.  reversioner    may    maintan    an    action 

2.  In  the  future.  for  wrongful  acts  causing  damage  to 
2a.  The  tenant  may  not  dispute  his      his   reversionary   interest.      See   Hop- 

landlord's  title;   i»nd  the  landlord  or     kins,  Real  Prop.,  141,  142  and  notes. 


CiiAP.  XI.]  Of  Estajes  in  Reversion.  223 

thereunto,  though  by  the  grant  of  the  rent  generally  the 
reversion  will  not  pass.  The  incident  passes  by  the  grant 
of  the  principal,  but  not  e  converso;^  for  the  maxim  of  law 
is,  " accessorium  non  ducit,  sed  sequitur,  suum  principale."^ 
Before  we  conclude  the  doctrine  of  remainders  and  rever- 
sions, it  may  be  proper  to  observe  that  whenever  a  greater 
estate'  and  a  less  coincide  and  meet  in  one  and  the  same 
person,  without  any  intermediate  estate,  the  less  is  imme- 
diately annihilated,  or,  in  the  law  phrase,  is  said  to  be 
merged,  that  is,  sunk  or  drowned  in  the  greater.  [177]  But 
they  must  come  to  one  and  the  same  person  in  one  and  the 
same  right  [and  at  the  same  time],  else,  if  the  freehold  be 
in  his  own  right  and  he  has  a  term  in  right  of  another  {en 
miter  droit),  there  is  no  merger.^  An  estate- tail  is  an 
exception  to  this  rule;  for  a  man  may  have  in  his  own  right 
both  an  estate-tail  and  a  reversion  in  fee,  and  the  estate- 
tail,  though  a  less  estate,  shall  not  merge  in  the  fee.  For 
estates-tail  are  protected  and  preserved  from  merger  by  the 
operation  and  construction,  though  not  by  the  express 
words,  of  the  statute  de  donis.^  [178] 

3.  On  the  contrary.  is     merged    in    a   bond    subsequently 

4.  The  accessory  does  not  lead,  but  given  for  the  same  purpose,  and  this 
follows  its  principal.  bond  may  be  merged  by  a  judgment 

5.  This  is  only  one  instance  of  mer-  rendered  upon  it. 
ger.    A  note  or  other  simple  contract         6.  Concerning  gifts. 


224  Of  Estates  in  Severalty.  [Book  II. 


CHAPTER  XII. 

OP    ESTATES    IN    SEVEEALTY,    JOINT-TENANCY,    COPARCENARY,    AND 

COMMON. 

Estates  of  any  quantity  or  length  of  duration,  and 
whether  they  be  in  actual  possession  or  expectancy,  may 
be  held  in  four  different  ways:  in  severalty,  in  joint-tenancy, 
in  coparcenary,  and  in  common.  [179] 

I.  He  that  holds  lands  or  tenements  in  severalty,  or  is 
sole  tenant  thereof,  is  he  that  holds  them  in  his  own  right 
only,  without  any  other  person  being  joined  or  connected 
with  him  in  point  of  interest,  during  his  estate  therein.  All 
estates  are  supposed  to  be  of  this  sort,  unless  where  they 
are  expressly  declared  to  be  otherwise;  and  in  laying  down 
general  rules  and  doctrines,  we  usually  apply  them  to  such 
estates  as  are  held  in  severalty. 

II.  An  estate  in  joint-tenancy  is  where  lands  or  tenements 
are  granted  to  two  or  more  persons,  to  hold  in  fee-simple, 
fee-tail,  for  life,  for  years,  or  at  will.  [180] 

1.  The  creation  of  an  estate  in  joint-tenancy  depends  on 
the  wording  of  the  deed  or  devise  by  which  the  tenants 
claim  title;  for  this  estate  can  only  arise  by  purchase  or 
grant,  that  is,  by  the  act  of  the  parties,  and  never  by  the 
mere  act  of  law.  Now  if  an  estate  be  given  to  a  plurality 
of  persons  without  adding  any  'restrictive,  exclusive,  or 
explanatory  words,  as  if  an  estate  be  granted  to  A  and  B 
and  their  heirs,  this  makes  them  immediately  joint  tenants 
in  fee  of  the  lands.^ 

2.  The  properties  of  a  joint  estate  are  derived  from  its 
unity,  which  is  fourfold:  the  unity  of  interest,  the  unity  of 
title,  the  unity  of  time,  and  the  unity  of  possession;  or,  in 
other  words,  joint-tenants  have  one  and  the  same  interest, 

1.  This  is  still  the  rule  of  the  com-  create  a  joint  tenancy  express  words 

mon  law  where  not  changed  by  stat-  to  that  effect  must  be  used  in  the  in- 

xite;  but  in  many  of  the  states  a  limi-  strument   creating   the   estate.      Hop- 

tation    that    at    common    law    would  kins,  Real  Prop.,  333,   335;    1  Stim. 

create  a  joint  tenancy  now  creates  a  Am.  St.  Law,  §  1371B, 
tenancy  in  common;   and  in  order  to 


Chap.  XII.]       Of  Estates  in  Joint-Tenancy.  225 

accruing  by  one  and  the  same  conveyance,  commencing  at 
one  and  the  same  time,  and  held  by  one  and  the  same  un- 
divided possession. 

First,  they  must  have  one  and  the  same  interest.  [181] 
One  joint-tenant  cannot  be  entitled  to  one  period  of  dura- 
tion or  quantity  of  interest  in  lands  and  the  other  to  a 
different;  one  cannot  be  tenant  for  life  and  the  other  for 
years;  one  cannot  be  tenant  in  fee  and  the  other  in  tail. 
But  if  land  be  limited  to  A  and  B  for  their  lives,  this  makes 
them  joint-tenants  of  the  freehold;  if  to  A  and  B  and  their 
heirs,  it  makes  then?  joint-tenants  of  the  inheritance. 
Secondly,  joint-tenants  must  also  have  an  unity  of  title; 
their  estate  must  be  created  by  one  and  the  same  act, 
whether  legal  or  illegal,  as  by  one  and  the  same  grant  or 
by  one  and  the  same  disseisin.  Joint-tenancy  cannot  arise 
by  descent  or  act  of  law,  but  merely  by  purchase  or  acquisi- 
tion by  the  act  of  the  party;  and,  unless  that  act  be  one  and 
the  same,  the  two  tenants  would  have  different  titles,  and 
if  they  had  different  titles,  one  might  prove  good  and  the 
other  bad,  which  would  absolutely  destroy  the  jointure. 
Thirdly,  there  must  also  be  an  unity  of  time;  their  estates 
must  be  vested  at  one  and  the  same  period  as  well  as  by 
one  and  the  same  title.  If  after  a  lease  for  life  the  re- 
mainder be  limited  to  the  heirs  of  A  and  B,  and  during  the 
<.-ontinuance  of  the  particular  estate  A  dies,  which  vests  the 
remainder  of  one  moiety  in  his  heir,  and  then  B  dies,  where- 
by the  other  moiety  becomes  vested  in  the  heir  of  B,  now 
A's  heir  and  B's  heir  are  not  joint-tenants  of  this  re- 
mainder, but  tenants  in  common,  for  one  moiety  vested  at 
one  time  and  the  other  moiety  vested  at  another.  Yet  where 
a  feoffment  was  made  to  the  use  of  a  man  and  such  wife  as 
he  should  afterwards  marry  for  term  of  their  lives,  and  he 
afterwards  married,  in  this  case  it  seems  to  have  been  held 
that  the  husband  and  wife  had  a  joint-estate,  though  vested 
at  different  times,  because  the  use  of  the  wife's  estate  was 
in  abeyance  and  dormant  till  the  intermarriage,  and,  being 
then  awakened,  had  relation  back,  and  took  effect  from  the 
original  time  of  creation.  [182]  Lastly,  in  joint-tenancy 
there  must  be  an  unity  of  possession.  Joint-tenants  are 
15 


22  G  Of  Estates  IN  Joint-Tenancy.  [Book  IT. 

said  to  be  seised,  per  my  et  per  tout,  by  the  half  or  moiety, 
and' by  all;  that  is,  they  each  of  them  have  the  entire  pos- 
session, as  well  of  every  parcel  as  of  the  tvhole.  They  have 
not,  one  of  them  a  seisin  of  one  half  or  moiety,  and  the  other 
of  the  other  moiety,  neither  can  one  be  exclusively  seised 
of  one  acre  and  his  companion  of  another,  but  each  has  an 
undivided  moiety  of  the  whole,  and  not  the  whole  of  an  un- 
divided moiety.  And  therefore,  if  an  estate  in  fee  be  given 
to  a  man  and  his  wife,  they  are  neither  properly  joint-ten- 
ants nor  tenants  in  common;  for  husband  and  wife  being 
considered  as  one  person  in  law,^hey  cannot  take  the  estate 
by  moieties,  but  both  are  seized  of  the  entirety,  per  tout,  et 
nan  per  my,^  the  consequence  of  which  is  that  neither  the 
husband  nor  the  wife  can  dispose  of  any  part  without  the 
assent  of  the  other,  but  the  whole  must  remain  to  the 
survivor.^ 

Upon  these  principles,  of  a  thorough  and  intimate  union 
of  interest  and  possession,  depend  many  other  consequences 
and  incidents  to  the  joint-tenant's  estate.  If  two  joint- 
tenants  let  a  verbal  lease  of  their  land,  reserving  rent  to  be 
paid  to  one  of  them,  it  shall  inure  to  both,  in  respect  of  the 
joint-reversion.  If  their  lessee  surrenders  his  lease  to  one 
of  them  it  shall  also  inure  to  both,  because  of  the  privity  or 
relation  of  their  estate.  On  the  same  reason,  livery  of  seisin- 
made  to  one  joint-tenant  shall  inure  to  both  of  them,  and 
the  entry,  or  re-entry,  of  one  joint-tenant  is  as  effectual  in 
law  as  if  it  were  the  act  of  both.  In  all  actions  also  relating 
to  their  joint-estate  one  joint-tenant  cannot  sue  or  be  sued 
without  joining  the  other.  Upon  the  same  ground  it  is  held 
that  one  joint-tenant  cannot  have  an  action  against  another 

2.  By  the  whole  and  not  by  the  See  the  notes  on  pages  491-499,  where 
moiety.    These  estates  have  been  abol-      the  cases  are  collected. 

ished    by    statute    in    many    states.  Tenancy    by    entirety    is    said    by 

though  they  exist  in  others.    See  Hop-  Chancellor  Kent  to  apply  to  estates 

kins,  Real  Prop.,  337.  in  fee,  for  life  or  for  years.     2  Kent 

3.  See  the  leading  cases  of  Green  Com.,  *132.  There  is,  however,  no 
ex  dem.  Crew  v.  King,  2  W.  Bl.  1211,  tenancy  by  entirety  in  chattels.  Polk 
and  Back  v.  Andrew,  2  Vern.  120;  v.  Allen,  19  Mo.  467;  Price  v.  Price, 
Ewell's    Lead.    Cas.    (1st  Ed.),   488.  5  Ala.  578.     See,  however,  35  N.  Y. 

Superior   Ct.  486. 


Chap.  XII.]       Of  Estates  in  Joint-Tenancy.  227 

for  trespass  in  respect  of  his  land,  for  each  has  an  equal 
right  to  enter  on  any  part  of  it.  [183]  But  one  joint-tenant 
is  not  capable  by  himself  to  do  any  act  which  may  tend  to 
defeat  or  injure  the  estate  of  the  other,  as  to  let  leases  or 
to  grant  copjiiolds;  and  if  any  waste  be  done  which  tends 
to  the  destruction  of  the  inheritance,  one  joint-tenant  may 
have  an  action  of  waste  against  the  other,  by  construction 
of  the  statute  Westm.  2,  c.  22.  So  too,  though  at  common 
law  no  action  of  account  lay  for  one  joint-tenant  against 
another,  unless  he  had  constituted  him  his  bailiff  or  re- 
ceiver, yet  now  by  the  statute  4  Anne,  c.  16,  joint-tenants 
may  have  actions  of  account^  against  each  other  for  receiv- 
ing more  than  their  due  share  of  the  profits  of  the  tenements 
held  in  joint-tenancy. 

From  the  same  principle  also  arises  the  remaining  grand 
incident  of  joint-estates,  viz.,  the  doctrine  of  survivorship, 
by  which  when  two  or  more  persons  are  seized  of  a  joint- 
estate,  of  inheritance,  for  their  own  lives,  or  pur  auter  vie,^ 
or  are  jointly  possessed  of  any  chattel-interest,  the  entire 
tenancy  upon  the  decease  of  any  of  them  remains  to  the 
survivors,  and  at  length  to  the  last  survivor,  and  he  shall 
be  entitled  to  the  whole  estate,  whatever  it  be,  whether  an 
inheritance  or  a  common  freehold  only,  or  even  a  less  estate. 

This  right  of  survivorship  is  called  by  our  ancient  authors 
the  jus  accrescendi,  because  the  right  upon  the  death  of  one- 
joint-tenant  accumulates  and  increases  to  the  survivors. 
1184]  And  this  jus  accrescendi  ought  to  be  mutual,  which 
I  apprehend  to  be  one  reason  why  neither  the  king  nor  any 
corporation  can  be  a  joint-tenant  with  a  private  person. 
For  here  is  no  mutuality ;  the  private  person  has  not  even 
the  remotest  chance  of  being  seised  of  the  entirety  by  benefit 
of  survivorship,  for  the  king  and  the  corporation  can  never 
die. 

3.  How  may  an  estate  in  joint-tenancy  be  severed  and 
destroyed?  [185]  This  may  be  done  by  destroying  any 
of  its  constituent  unities.  1.  That  of  time,  which  respects 
only  the  original  commencement  of  the  joint-estate,  cannot 

4.  This  action  is  still  in  use  in  lUi-  5.  For  the  life  of  another, 

cois.     Eev.  Stat.  111.,  ch.  2. 


228  Of  Estates  in  Joint-Tenancy.  [Book  II. 

indeed  (being  now  past)  be  affected  by  any  subsequent 
transaction.  But,  2.  The  joint-tenants'  estate  may  be  de- 
stroyed without  any  alienation,  by  merely  disuniting  their 
possession.  And,  therefore,  if  two  joint-tenants  agree  to 
part  tlieir  lands  and  hold  them  in  severalty,  they  are  no 
longer  joint-tenants,  for  they  have  now  no  joint-interest  in 
the  whole,  but  only  a  several  interest  respectively  in  the 
several  parts.  And  for  that  reason,  also,  the  right  of  sur- 
vivorship is  by  such  separation  destroyed.  By  common 
law  all  the  joint-tenants  might  agree  to  make  partition  of 
the  lands,  but  one  of  them  could  not  compel  the  other  so 
to  do ;  for  this  being  an  estate  originally  created  by  the  act 
and  agreement  of  the  parties,  the  law  would  not  permit  any 
one  or  more  of  them  to  destroy  the  united  possession  with- 
out a  similar  universal  consent.  But  now  by  the  statutes 
31  Hen.  VIIL  c.  1,  and  32  Hen.  VIL  c.  32,  joint-tenants, 
either  of  inheritance  or  other  less  estates,  are  compellable 
by  writ  of  partition^  to  divide  their  lands.  3.  The  jointure 
may  be  destroyed  by  destroying  the  unity  of  title.  As  if 
one  joint-tenant  alienes  and  conveys  his  estate  to  a  third 
person,  here  the  joint-tenancy  is  severed  and  turned  into 
tenancy  in  common,  for  the  grantee  and  the  remaining  joint- 
tenant  hold  by  different  titles  (one  derived  from  the  orig- 
inal, the  other  from  the  subsequent  grantor),  though,  till 
partition  made,  the  unity  of  possession  continues.  But  a 
devise  of  one 's  share  by  will  is  no  severance  of  the  jointure, 
for  no  testament  takes  effect  till  after  the  death  of  the 
testator,  and  by  such  death  the  right  of  the  survivor  (which 
accrued  at  the  original  creation  of  the  estate,  and  has  there- 
fore a  priority  to  the  other)  is  already  vested.  [186]  4.  It 
may  also  be  destroyed  by  destroying  the  unity  of  interest. 
And,  therefore,  if  there  be  two  joint-tenants  for  life  and 
the  inheritance  is  purchased  by  or  descends  upon  either, 
it  is  a  severance  of  the  jointure;  though  if  an  estate  is 
originally  limited  to  two  for  life,  and  after  to  the  heirs  of 
one  of  them,  the  freehold  shall  remain  in  jointure  without 
merging  in  the  inheritance,  because,  being  created  by  one 
and  the  same  conveyance,  they  are  not  separate  estates 

6.  See  local  statutes  as  to  remedies   by  way  of  partition. 


CiiAP.  XII.]        Of  Estates  in  Copabcenaey.  229 

(which  is  requisite  in  order  to  a  merger),  but  branches  of 
one  entire  estate.  In  like  manner,  if  a  joint-tenant  in  fee 
makes  a  lease  for  life  of  his  share,  this  defeats  the  jointure, 
for  it  destroys  the  unity  both  of  the  title  and  of  interest. 
And  whenever  or  by  whatever  means  the  jointure  ceases 
or  is  severed,  the  right  of  survivorship  or  jus  accrescendi, 
the  same  instant  ceases- with  it.  Yet  if  one  of  three  joint- 
tenants  alienes  his  share,  the  two  remaining  tenants  still 
hold  their  parts  by  joint-tenancy  and  survivorship;  and  if 
one  of  three  joint-tenants  release  his  share  to  one  of  his 
companions,  though  the  joint-tenancy  is  destroyed  with  re- 
gard to  that  part,  yet  the  two  remaining  parts  are  still  held 
in  jointure,  for  they  still  preserve  their  original  constituent 
unities.  But  when  by  an  act  or  event  different  interests 
are  created  in  the  several  parts  of  the  estate,  or  they  are 
h-eld  by  different  titles,  or  if  merely  the  possession  is  sep- 
arated, so  that  the  tenants  have  no  longer  these  four  indis- 
pensable properties,  a  sameness  of  interest  and  undivided 
possession,  a  title  vesting  at  one  and  the  same  time  and  by 
one  and  the  same  act  or  grant,  the  jointure  is  instantly 
dissolved. 

In  general  it  is  advantageous  for  the  joint-tenants  to  dissolve  the 
jointure,  since  thereby  the  right  of  survivorship  is  taken  away,  and  each 
may  transmit  his  own  part  to  his  own  heirs.  [187]  Sometimes,  however, 
it  is  disadvantageous  to  dissolve  the  joint-estate:  as  if  there  be  joint- 
tenants  for  life,  and  they  make  partition,  this  dissolves  the  jointure; 
and  though  before  they  each  of  them  had  an  estate  in  the  whole  for  their 
own  lives,  and  the  life  of  their  companion,  now  they  have  an  estate  in 
a  moiety  only  for  their  own  lives  merely,  and  on  the  death  of  either, 
the  reversioner  shall  enter  on  his  moiety.  And  therefore  if  there  be 
two  joint-tenants  for  life,  and  one  grants  away  his  part  for  the  life  of 
his  companion,  it  is  a  forfeiture;  for  in  the  first  place,  by  the  severance 
of  the  jointure  he  has  given  himself  in  his  own  moiety  only  an  estate 
for  his  own  life,  and  then  he  grants  the  same  land  for  the  life  of  an- 
other,— which  grant  by  a  tenant  for  his  own  life  merely,  is  a  forfeiture 
of  his  estate;  for  it  is  creating  an  estate  which  may  by  possibility  last 
longer  than  that  which  he  is  legally  entitled  to. 

III.  An  estate  held  in  coparcenary^  is  where  lands  of  in- 
heritance descend  from  the  ancestor  to  two  or  more  persons. 

7.  So  called  because  the  coparceners  Mr.  Hopkins  states  that  they  exist 
can  be  compelled  to  make  partition,      in  only  a  few  states.     Hopkins  Real 


230  Of  Estates  in  Coparcenary.  [Book  II, 

It  arises  either  by  common  law  or  particular  custom.  By  common 
law,  as  where  a  person  seised  in  fee-simple  or  in  fee-tail  dies  and  his 
next  heirs  are  two  or  more  females,  his  daughters,  sisters,  aunts,  cou- 
sins or  their  representatives,  in  this  case  they  shall  all  inherit,  and  these 
coheirs  are  then  called  coparceners,  or,  for  brevity,  parceners  only.  Par- 
ceners by  particular  custom  are  where  lands  descend,  as  in  gavelkind, 
to  all  the  males  in  equal  degree,  as  sons,  brothers,  uncles,  &c.  And  in 
either  of  these  cases  all  the  parceners  puf  together  make  but  one  heir, 
and  have  but  one  estate  among  them. 

The  properties  of  parceners  are  in  some  respects  like  those  of  joint- 
tenants,  they  having  the  same  unities  of  interest,  title,  and  possession. 
[188]  They  may  sue  and  be  sued  jointly  for  matters  relating  to  their 
own  lands,  and  the  entry  of  one  of  them  shall  in  some  cases  inure  as 
the  entry  of  them  all.  They  cannot  have  an  action  of  trespass  against 
each  other.  But  herein  they  differ  from  joint-tenants,  that  they  are 
also  excluded  from  maintaining  an  action  of  waste;  for  coparceners 
could  at  all  times  put  a  stop  to  any  waste  by  writ  of  partition,  but  till 
the  statute  of  Henry  VIII.  joint-tenants  had  no  such  power.  Parceners 
also  differ  materially  from  joint-tenants  in  four  other  points.  1.  They 
always  claim  by  descent,  whereas  joint-tenants  always  claim  by  pur- 
chase. And  hence  no  lands  can  be  held  in  coparcenery  but  estates  of  in- 
heritance which  are  of  a  descendible  nature;  whereas  not  only  estates 
in  fee  and  in  tail,  but  for  life  or  years,  may  be  held  in  joint-tenancy.  2. 
There  is  no  unity  of  time  necessary  to  an  estate  in  coparcenary.  For 
If  a  man  had  two  daughters  to  wh6m  his  estate  descends  in  coparcenary, 
and  one  dies  before  the  other,  the  surviving  daughter  and  the  heir  of 
the  other,  or  when  both  are  dead  their  two  heirs  are  still  parceners, 
the  estates  vesting  in  each  of  them  at  different  times,  though  it  be  the 
same  quantity  of  interest  and  held  by  the  same  title.  3.  Parceners, 
though  they  have  an  unity,  have  not  an  entirety  of  interest.  They  are 
properly  entitled  each  to  the  whole  of  a  distinct  moiety,  and  of  course 
there  is  no  jus  accrescendi,  or  survivorship,  between  them,  for  each  part 
descends  severally  to  their  respective  heirs,  though  the  unity  of  posses- 
sion continues.  And  as  long  as  the  lands  continue  in  a  course  of  descent 
and  united  in  possession,  so  long  are  the  tenants  therein,  whether  male 
or  female,  called  parceners.  But  if  the  possession  be  once  severed  by 
partition,  they  are  no  longer  parceners,  but  tenants  in  severalty;  or  if 
one  parcener  alienes  her  share,  though  no  partition  be  made,  then  are 
the  lands  no  longer  held  in  coparcenary,  but  in  common.  [189] 

The  estate  in  coparcenary  may  be  dissolved  either  by  partition,  which 
disunites  the  possession;  by  alienation  of  one  parcener,  which  disunites 
the  title  and  may  disunite  the  interest;  or  by  the  whole  at  last  descend- 

Prop.,  336,  337.     In  some  states  this      men.     Id.,   citing  1   Stim.   Am.   Stat. 
estate  has  been  abolished  by  statute      Law,  §  1375A. 
and  co-heirs  take  as  tenants  in  com- 


Chap.  XII.]  Of  Estates  in  Common.  231 

ing  to  and  vesting  in  one  single  person,  which  brings  it  to  an  estate  in 
severalty.  [191] 

IV.  Tenants  in  common  are  such  as  hold  by  several  and 
distinct  titles,  but  by  unity  of  possession,  because  none 
knoweth  his  own  severalty,  and  therefore  they  all  occupy 
promiscuously.^  This  tenancy,  therefore,  happens  where 
there  is  a  unity  of  possession  merely  but  perhaps  an  entire 
disunion  of  interest,  of  title,  and  of  time.  For  if  there  be 
two  tenants  in  common  of  lands,  one  may  hold  his  part  in 
fee-simple,  the  other  in  tail  or  for  life,  so  that  there  is  no 
necessary  unity  of  interest.  One  may  hold  by  descent,  the 
.  other  by  purchase ;  or  the  one  by  purchase  from  A,  the  other 
by  purchase  from  B;  so  that  there  is  no  unity  of  title.  One's 
estate  may  have  been  vested  fifty  years,  the  other's  but 
yesterday;  so  there  is  no  unity  of  time.  [192]  The  only 
unity  there  is,  is  that  of  possession,  and  for  this  Littleton 
^ives  the  true  reason,  because  no  man  can  certainly  tell 
which  part  is  his  own;  otherwise  even  this  would  be  soon 
destroyed. 

Tenancy  in  common  may  be  created  either  by  the  de- 
struction of  the  two  other  estates  in  joint-tenancy  and 
coparcenary,  or  by  special  limitation  in  a  deed.^  By  the 
destruction  of  the  two  other  estates,  I  mean  such  destruc- 
tion as  does  not  sever  the  unity  of  possession,  but  only  the 
imity  of  title  or  interest.  As  if  one  of  two  joint-tenants  in 
fee  alienes  his  estate  for  the  life  of  the  alienee,  the  alienee 
^nd  the  other  joint-tenants  are  tenants  in  common,  for  they 
have  now  several  titles,  the  other  joint-tenant  by  the  orig- 
iginal  grant,  the  alienee  by  the  new  alienation;  and  they 
also  have  several  interests,  the  former  joint-tenant  in  fee- 
simple,  the  alienee  for  his  own  life  only.  So  if  one  joint- 
tenant  gives  his  part  to  A  in  tail  and  the  other  gives  his 
to  B  in  tail,  the  donees  are  tenants  in  common  as  holding 
by  different  titles  and  conveyances.  If  one  of  two  par- 
ceners alienes,  the  alienee  and  the  remaining  parcener  are 

8.  Hopkins,  Real  Prop.,  335.  now  in  this  country.     See  ante^  Joint 

9.  This  was  the  common  law  rule;      Tenancy  and  note, 
tut  the  converse  is  generally  the  case 


232  Of  Estates  in  Common.  [Book  IT. 

tenants  in  common,  because  they  hold  by  different  titles, 
the  parcener  by  descent,  the  alienee  by  purchase.  So  like- 
wise, if  there  be  a  grant  to  two  men  or  two  women,  and  the 
heirs  of  their  bodies,  here  the  grantees  shall  be  joint-tenants 
of  the  life  estate,  but  they  shall  have  several  inheritances; 
because  they  cannot  possibly  have  one  heir  of  their  two 
bodies,  as  might  have  been  the  case  had  the  limitation  been 
to  a  man  and  tvaman  and  the  heirs  of  their  bodies  begotten. 
And  in  this  and  the  like  cases,  their  issue  shall  be  tenants  in 
common,  because  they  must  claim  by  different  titles,  one  as 
heir  of  A  and  the  other  as  heir  of  B,  and  those  two  not  titles 
by  purchase  but  descent.  [193]  In  short,  whenever  an  es- 
tate in  joint-tenancy  or  coparcenary  is  dissolved,  so  that 
there  be  no  partition  made,  but  the  unity  of  possession  con- 
tinues, it  is  turned  into  a  tenancy  in  common. 

A  tenancy  in  common  may.  also  be  created  by  express 
limitation  in  a  deed.^  But  here  care  must  be  taken  not  to 
insert  words  which  imply  a  joint  estate,  and  then  if  lands 
be  given  to  two  or  more,  and  it  be  not  joint-tenancy,  it  must 
be  a  tenancy  in  common.  But  the  law  is  apt  in  its  construc- 
tions to  favor  joint-tenancy  rather  than  tenancy  in  common, 
because  the  divisible  services  issuing  from  land  (as  rent,. 
&c.)  are  not  divided,  nor  the  entire  services  (as  fealty) 
multiplied  by  joint-tenancy,  as  they  must  necessarily  be 
upon  a  tenancy  in  common.  Land  given  to  two,  to  be 
holden  the  one  moiety  to  one  and  the  other  moiety  to  the 
other,  is  an  estate  in  common,  and  if  one  grants  to  another 
half  his  land,  the  grantor  and  grantee  are  also  tenants  in 
common,  becaufje,  as  has  been  before  observed,  joint-tenants 
do  not  take  by  distinct  halves  or  moieties;  and  by  such 
grants  the  division  and  severalty  of  the  estate  is  so  plainly 
expressed  that  it  is  impossible  they  should  take  a  joint  in- 
terest in  the  whole  of  the  tenements.  But  a  devise  to  two 
persons  to  hold  jointly  and  severally  is  said  to  be  a  joint- 
tenancy,  because  that  is  necessarily  implied  in  the  word 
**  jointly,"  the  word  **  severally  "  perhaps  only  implying 
the  power  of  partition.  And  an  estate  given  to  A  and  B, 
equally  to  he  divided  between  them,  though  in  deeds  it  hath 

1.  See    ante,    Joint    Tenancy    and  note. 


Chap.  XII.]  Of  Estates  in  Common".  233 

been  said  to  be  a  joint-tenancy,  —  for  it  implies  no  more 
than  the  law  has  annexed  to  that  estate,  viz.,  divisibility,  — 
yet  in  wills  it  is  certainly  a  tenancy  in  common,  because  the 
devisor  may  be  presumed  to  have  meant  what  is  most  bene- 
ficial to  both  the  devisees,  though  his  meaning  is  imperfectly 
expressed.  And  this  nicety  in  the  wording  of  grants  makes 
it  the  mo&t  usual,  as  well  as  the  wafest  way  when  a  tenancy 
in  common  is  meant  to  be  created,  to  add  express  words  of 
exclusion  as  well  as  description,  and  limit  the  estate  to  A 
and  B  to  hold  as  tenants  in  common,  and  not  as  joint-ten- 
ants.'' [194] 

As  to  the  incidents  attending  a  tenancy  in  common,  ten- 
ants in  common  (like  joint-tenants)  are  compellable  by  the 
statutes  of  Henry  VIII.  and  William  III.,  before  mentioned, 
to  make  partition  of  their  lands,  which  they  were  not  at 
common  law.  They  properly  take  by  distinct  moieties,  and 
have  no  entirety  of  interest,  and  therefore  there  is  no  sur- 
vivorship between  tenants  in  common.  Their  other  inci- 
dents are  such  as  merely  arise  from  the  unity  of  possession, 
and  are  therefore  the  same  as  appertain  to  joint-tenants 
merely  upon  that  account :  such  as  being  liable  to  reciprocal 
actions  of  waste ^  and  of  account^  by  the  statutes  of  Westm. 
2,  c.  22,  and  4  Anne,  c.  16.  For  by  the  common  law  no  tenant 
in  common  was  liable  to  account  with  his  companion  for 
embezzling  the  profits  of  the  estate,  though  if  one  actually 
turns  the  other  out  of  possession,  an  action  of  ejectment^ 
will  lie  against  him.  But  as  for  other  incidents  of  joint- 
tenants  which  arise  from  the  privity  of  title  or  the  union 
and  entirety  of  interest  (such  as  joining  or  being  joined 
in  actions,  unless  in  the  case  where  some  entire  or  indivi- 
sible thing  is  to  be  recovered),  these  are  not  applicable  to 
tenant?  in  common,  whose  interests  are  distinct  and  whose 
titles  are  not  joint,  but  several. 

2.  In  order  to  limit  a  joint  tenancy  3.  See  ante.  Waste. 

In  most  of  the  states,  use  tlie  words  4.  This  action  is  still  in  use  in  lUi- 

"  to  hold  as  joint  tenants  and  not  as  nois.     Rev.  Stat.  111.,  eh.  2. 

tenants   in   common;  "   but   first  con-  5.  The  common  law  actions  will  be 

suit  the  statutes.     See  Hopkins,  Real  treated  later  on. 
Prop.,   335,   336. 


234  Of  Estates  in  Common.  [Book  TI. 

Estates  in  common  can  only  be  dissolved  two  ways:  1. 
By  uniting  all  the  titles  and  interests  in  one  tenant,  by  pur- 
chase or  otherwise,  which  brings  the  whole  to  one  severalty^ 
2.  By  making  partition  between  the  several  tenants  in 
common,  which  gives  them  all  respective  severalties.  For^ 
indeed,  tenancies  in  common  differ  in  nothing  from  sole 
estates,  but  merely  in  the  blending  and  unity  of  possession. 
And  this  finishes  our  inquiries  with  respect  to  the  nature 
of  estates. 


CiiAr.  XIII.]       The  Title  to  Things  Keal.  235 


CHAPTER  XIIL 

OF  THE  TITLE  TO  THINGS  EEAL,  IN  GENEEAL. 

A  title  is  thus  defined  by  Sir  Edward  Coke :  Titulus  est 
justa  causa  possidendi  id  quod  nostrum  est;  or,  it  is  the 
means  whereby  the  owner  of  lands  hath  the  just  possession 
of  his  property.  [195] 

There  are  several  stages  or  degrees  requisite  to  form  a 
complete  title  to  lands  and  tenements.  We  will  consider 
them  in  a  progressive  order. 

I.  The  lowest  and  most  imperfect  degree  of  title  consists 
in  the  mere  naked  possession,  or  actual  occupation  of  the 
estate,  without  any  apparent  right,  or  any  shadow  or  pre- 
tence of  right,  to  hold  and  continue  such  possession.^ 
This  may  happen  when  one  man  invades  the  possession  of 
another,  and  by  force  or  surprise  turns  him  out  of  the  occu- 
pation of  his  lands,  which  is  termed  a  disseisin,  being  a  de- 
privation of  that  actual  seisin  or  corporal  freehold  of  the 
lands  which  the  tenant  before  enjoyed.  Or  it  may  happen 
that  after  the  death  of  the  ancestor  and  before  the  entry 
of  the  heir,  or  after  the  death  of  a  particular  tenant  and 
before  the  entry  of  him  in  remainder  or  reversion,  a  stran- 
ger may  contrive  to  get  possession  of  the  vacant  land  and 
hold  out  him  that  had  a  right  to  enter.  [196]  In  the  mean- 
time, till  some  act  be  done  by  the  rightful  owner  to  devest 

'  1.  Mere  possession  will  prevail  of  acquiring  possession.  See  2  Bou- 
everywhere  as  against  a  wrongdoer  vier  Law  Diet.  Possession  and  author- 
without  title.  And  this  is  true  both  ities  cited.  It  s  doubtful  whether 
as  to  real  and  personal  property.  See  this  statement  is  correct  in  its  fullest 
the  leading  case  of  Armory  v.  Dela-  extent,  for  an  infant  of  sufficient  un- 
mire,  1  Strange,  504;  1  Smith's  Lead,  derstanding  may  lawfully  acquire  the 
Cases  (9th  Am.  Ed.),  631  and  notes,  possession  of  a  thing.  Id.  The  so- 
In  order  to  complete  a  possession  called  Torrens  system  has  been 
two  things  are  necessary:  First,  an  adopted  in  Illinois  and  quite  a  num- 
occupancy,  apprehension  or  taking,  ber  of  other  states.  See  the  report 
and,  secondly,  that  the  taking  be  with  of  the  committee  on  the  Torrens  sys- 
an  intent  to  possess  {animus  possi-  tem  in  the  proceedings  of  the  sixth 
dcndi)  ;  hence  persons  who  have  no  annual  meeting  of  the  Colorado  Bar 
legal  will  are  said  not  to  be  capable  Association,  July,  1903. 


236  The  Title  to  Things  Real.  [Book  IT. 

this  possession  and  assert  his  title,  such  actual  possession 
is,  prima  facie,  evidence  of  a  legal  title  in  the  possessor, 
and  it  may,  by  length  of  time  and  negligence  of  him  who 
hath  the  right,  by  degrees  ripen  into  a  perfect  and  inde- 
feasible title.  And  at  all  events,  without  such  actual  pos- 
session no  title  can  be  completely  good. 

II.  The  next  step  to  a  good  and  perfect  title  is  the  right 
of  possession,  which  may  reside  in  one  man,  while  the  actual 
possession  is  not  in  himself,  but  in  another.  For  if  a  man 
be  disseised,  or  otherwise  kept  out  of  possession  by  any  of 
the  means  before  mentioned,  though  the  actual  possession 
be  lost,  yet  he  has  still  remaining  in  him  the  right  of  pos- 
session, and  may  exert  it  whenever  he  thinks  proper  by  enter- 
ing upon  the  disseisor  and  turning  him  out  of  that  occu- 
pancy which  he  has  so  illegally  gained.  But  this  right  of 
possession  is  of  two  sorts:  an  apparent  right  of  possession, 
which  may  be  defeated  by  proving  a  better,  and  an  actual 
right  of  possession,  which  will  stand  the  test  against  all 
opponents.  Thus  if  the  disseisor  or  other  wrong-doer  dies 
possessed  of  the  land  whereof  he  so  became  seized  by  his 
own. unlawful  act,  and  the  same  descends  to  his  heir,  now 
by  the  common  law  the  heir  hath  obtained  an  apparent 
right,  though  the  actual  right  of  possession  resides  in  the 
person  disseised,  and  it  shall  not  be  lawful  for  the  person 
disseised  to  devest  this  apparent  right  by  mere  entry  or 
other  act  of  his  own,  but  only  by  an  action  at  law  [i.  e.  a 
real  action,  which  is  now  obsolete].  But  if  he  who* has  the 
actual  right  of  possession  puts  in  his  claim  and  brings  his 
action  within  a  reasonable  time,  and  can  prove  by  what 
unlawful  means  the  ancestor  became  seised,  he  will  then  by 
sentence  of  law  recover  that  possession  to  which  he  hath 
such  actual  right.  [197]  Yet,  if  he  omits  to  bring  this 
his  possessory  action  within  a  competent  time,  his  adver- 
sary may  imperceptibly  gain  an  actual  right  of  possession 
in  consequence  of  the  other's  negligence.  And  by  this  and 
certain  other  means  the  party  kept  out  of  possession  may 
have  nothing  left  in  him  but  what  we  are  next  to  speak  of, 
viz. : — 

III.  The  mere  right  of  property,  the  jus  proprietatis, 


Chap.  XUL]       The  Title  to  Things  Real.  237 

without  either  possession  or  even  the  right  of  possession. 
This  is  frequently  spoken  of  in  our  books  under  the  name 
of  the  mere  right,  jus  merum,  and  the  estate  of  the  owner  is 
in  such  cases  said  to  be  totally  devested  and  put  to  a  right? 

A  person  in  this  situation  may  have  the  true  ultimate  property  of  the 
lands  in  himself,  but  by  the  intervention  of  certain  circumstances, 
either  by  his  own  negligence,  the  solemn  act  of  his  ancestor,  or  the 
determination  of  a  court  of  justice,  the  presumptive  evidence  of  that 
right  is  strongly  in  favor  of  his  antagonist,  who  has  thereby  obtained 
the  absolute  right  of  possession.  As,  in  the  first  place,  if  a  person 
disseised,  or  turned  out  of  possession  of  his  estate,  neglects  to  pursue 
his  remedy  within  the  time  limited  by  law,  by  this  means  the  disseisor 
orchis  heirs  gain  the  actual  right  of  possession;  for  the  law  presumes 
that  either  he  had  a  good  right  originally,  in  virtue  of  which  he  entered 
on  the  lands  in  question,  or  that  since  such  his  entry  he  has  procured 
a  sufficient  title,  and  therefore,  after  so  long  an  acquiescence,  the  law 
will  not  suffer  his  possession  to  be  disturbed  without  inquiring  into  the 
absolute  right  of  property.  [198]  Yet  still,  if  the  person  disseised  or 
his  heir  hath  the  true  right  of  property  remaining  in  himself,  his  estate 
is  indeed  said  to  be  turned  into  a  mere  right,  but,  by  proving  such  his 
better  right»  he  may  at  length  recover  the  lands.  Again,  if  a  tenant 
in  tail  discontinues  his  estate-tail  by  alienating  the  lands  to  a  stranger 
in  fee,  and  dies,  here  the  issue  in  tail  hath  no  right  of  possession,  inde- 
pendent of  the  right  of  property;  for  the  law  presumes  prima  facie  that 
the  ancestor  would  not  disinherit  or  attempt  to  disinherit  his  heirs  un- 
less he  had  power  so  to  do,  and  therefore,  as  the  ancestor  had  in  him- 
self the  right  of  possession,  and  has  transferred  the  same  to  a  stranger, 
the  law  will  not  permit  that  possession  now  to  be  disturbed,  unless  by 
showing  the  absolute  right  of  property  to  reside  in  another  person.  The 
heir  therefore  in  this  case  has  Only  a  mere  right,  and  must  be  strictly 
held  to  the  proof  of  it,  in  order  to  recover  the  lands.  Lastly,  if  by 
accident,  neglect,  or  otherwise,  judgment  is  given  for  either  party  in  any 
possessory  action  (that  is,  such  wherein  the  right  of  possession  only, 
and  not  that  of  property  is  contested),  and  the  other  party  hath  indeed' 
in  himself  the  right  of  property,  this  is  now  turnr«d  to  a  mere  right,  and 
upon  proof  thereof  in  a  subsequent  action,  denominated  a  writ  of  right, 
he  shall  recover  his  seisin  of  the  lands. 

Thus,  if  a  disseisor  turns  me  out  of  possession  i.f  my  lands,  he  thereby 
gains  a  mere  naked  possession,  and  I  still  retain  thft  right  of  possession  and 
right  of  property.    If  the  disseisor  dies  and  the  lands  descend  to  his  son, 

2.  See  Stat.  3  &  4  Wm.  IV.,  c.  27.  right  to  possession  could  be  vindi- 
Eeal  actions,  by  which  alone  this  cated,  having  been  abolished,  this  dis- 
Haere  right  as  distinguished  from  the      tinction   is  no  longer  important. 


238  The  Title  to  Things  Real.  [Book  IT. 

the  son  gains  an  apparent  right  of  possrssion;  but  I  still  retain  the  actual 
right  both  of  poss'-ssion  and  property.  If  I  acquiesce  for  thirty  years 
without  bringing  any  action  to  recover  possession  of  the  lands,  the  son 
gains  the  actual  right  of  possession,  and  I  retain  nothing  but  the  mere 
right  of  property.  [199]  And  even  this  right  of  property  will  fail,  or  at 
least  it  will  be  without  a  remedy,  unless  I  pursue  it  within  the  space  of 
sixty  years.  So  also  if  the  father  be  tenant  in  tail  and  alienes  the  estate- 
tail  to  a  stranger  in  fee,  the  alienee  thereby  gains  the  right  of  possession, 
and  the  son  hath  only  the  mere  right  or  right  of  property.  And  hence  it 
will  follow  that  one  man  may  have  the  possession,  another  the  right  of 
possession,  and  a  third  the  right  of  property.  For  if  a  tenant  in  tail 
Infeoffs  A  in  fee-semple  and  dies,  and  B  disseises  A,  now  B  will  have  the 
possession,  A  the  right  of  possession,  and  the  issue  in  tail  the  right  of 
property:  A  may  recover  the  possession  against  B,  and  afterwards  the 
Issue  in  tail  may  evict  A,  and  unite  in  himself  the  possession,  the  pight 
of  possession,  and  also  the  right  of  property.    In  which  union  consists:  — 

IV.  A  complete  title  to  lands,  tenements,  and  heredita- 
ments. For  it  is  an  ancient  maxim  of  the  law  that  no  title 
is  completely  good  unless  the  right  of  possession  be  joined 
with  the  right  of  property,  which  right  is  then  denominated 
a  double  right,  jiis  duplicatum,  or  droit  droit.  'And  when 
to  this  double  right  the  actual  possession  is  also  united, 
there  is,  according  to  the  expression  of  Fleta,  juris  et 
seisinae  conjunctio,^  then,  and  then  only,  is  the  title  com- 
pletely legal,* 

3.  A  joining  of  right  and  seisin.  constructively  pessession  of  the  whole, 

4.  Possession  and  right  of  posses-  provided  no  one  else  is  occupying  any 
sion  are  now  in  any  case  sufficient  to  portion  thereof."  Cooley  on  Torts 
maintain  an  action.  Possession  may  (Students'  Ed.,  1907),  316  and  cases 
be  actual  or  constructive.  "  If  one  cited.  The  statutes  of  forcible  entry 
occupies  part  of  a  known  description  and  detainer  in  the  several  states 
of  land,  but  has  color  of  title  to  the  should  be  consulted  upon  the  subject 
whole  and  claims  the  whole,  he  has  of  entry. 


Chap.  XIV.]  Of  Title  by  Descent.  239 


CHAPTER  XIV. 

OF  TITLE  BY  DESCENT. 

The  methods  of  acquiring  and  of  losing  a  title  to  estates 
in  things  real  are  reduced  by  our  law  to  two :  descent,  where 
the  title  is  vested  in  a  man  by  the  single  operation  of  law, 
and  purchase,  where  the  title  is  veste4  in  him  by  his  own 
act  or  agreement.^   [201] 

Descent  or  hereditary  succession  is  the  title  whereby  a 
man  on  the  death  of  his  ancestor  acquires  his  estate  by  right 
of  representation,  as  his  heir  at  law.  An  heir,  therefore,  is 
lie  upon  whom  the  law  casts  the  estate  immediately  on  the 
death  of  the  ancestor,  and  an  estate  so  descending  to  the 
heir  is  in  law  called  the  inheritance. 

As  the  common  law  doctrine  of  inheritance  depends  not 
a  little  on  the  nature  of  kindred  and  the  several  degrees  of 
consanguinity,  it  will  be  previously  necessary  to  state,  as 
briefly  as  possible,  the  true  notion  of  this  kindre<^  or  alliance 
in  blood.   [202] 

Consanguinity,  or  kindred,  is  defined  by  the  writers  on 
these  subjects,  to  be  *^  vinculum  personarum  ah  eodem  sti- 
pite  descendentium,"  the  connection  or  relation  of  persons 
descended  from  the  same  stock  or  common  ancestor.  This 
consanguinity  is  either  lineal  or  collateral. 

Lineal  consanguinity  is  that  which  subsists  between  per- 
sons, of  whom  one  is  descended  in  a  direct  line  from  the 
other,  as  between  John  Stiles  and  his  father,  grandfather, 
great-grandfather,  and  so  upwards  in  the  direct  ascending 
line,  or  between  John  Stiles  and  his  son,  grandson,  great- 
grandson,  and  so  downwards  in  the  direct  descending  line. 
[203]  Every  generation  in  this  lineal  direct  consanguinity 
constitutes  a  different  degree,  reckoning  either  upwards  or 
downwards.    The  father  of  John  Stiles  is  related  to  him 

1.  Hopkins,    Real    Prop.,    399.      A  ordinary    transfer    from    individuals; 

state   may   acquire   title    (a)    by  dis-  (e)    or  by  forfeiture  to  the  state  for 

covery,  conquest  and  treaty;    (b)    by  nonpayment  of  taxes  in  some  states, 

confiscation  and  escheat;    (c)    by  the  Id. 
right  of  eminent  domain;  and  (d)  by 


240  Of  Title  by  Descent.  [Book  II. 

in  the  first  degree,  and  so  likewise  is  his  son;  his  grandsire 
and  grandson  in  the  second;  his  great-grandsire  and  great- 
grandson  in  the  third.  Tliis  is  the  only  natural  way  of 
reckoning  the  degrees  in  the  direct  line,  and  therefore  uni- 
versally obtains,  as  well  in  the  civil  and  canon  as  in  the 
common  law. 

Collateral  kindred  agree  with  the  lineal  in  this,  that  they 
descend  from  the  same  stock  or  ancestor,  but  differ  in  this, 
that  they  do  not  descend  one  from  the  other.  [204]  Col- 
lateral kinsmen  are  such  then  as  lineally  spring  from  one 
and  the  sanie  ancestor,  who  is  the  stirpSf  or  root,  the  stipes, 
trunk,  or  common  stock,  from  whence  these  relations  are 
branched  out.  As  if  John  Stiles  hath  tw^o  sons,  who  have 
a  numerous  issue:  both  these  issues  are  lienally  descended 
from  John  Stiles  as  their  common  ancestor,  and  they  are 
collateral  kinsmen  to  each  other,  because  they  are  all  de- 
scended from  this  common  ancestor,  and  all  have  a  portion 
of  his  blood  in  their  veins,  which  denominates  them  con- 
sangmneos.  [205] 

The  method  of  computing  degrees  of  collateral  consan- 
guinity in  the  canon  law,  which  our  law  has  adopted,  is  as 
follows:  We  begin  at  the  common  ancestor  and  reckon 
downwards,  and  in  wiiatever  degree  the  tw^o  persons  or  the 
most  remote  of  them  is  distant  from  the  common  ancestor, 
that  is  the  degree  in  which  they  are  related  to  each  other. 
[206]  Thus  Titius  and  his  brother  are  related  in  the  first  de- 
gree, for  from  the  father  to  each  of  them  is  counted  only  one ; 
Titius  and  his  nephew  are  related  in  the  second  degree,  for 
the  nephew  is  two  degrees  removed  from  the  common  an- 
cestor, viz.,  his  own  grandfather,  the  father  of  Titius.  [207] 
The  civilians  count  upwards,  from  either  of  the  persons 
related,  to  the  common  stock,  and  then  downwards  again 
to  the  other,  reckoning  a  degree  for  each  person  both  as- 
cending and  descending.^ 

I.  The  first  rule  or  canon  of  inheritance  is,  that  inherit- 

2.  The  mode  of  the  civil  law  is  pref-  most  of  the  states  the  civil  law  rule 

erable  for  it  points  out  the  actual  de-  of  reckoning  has  been  adopted.    Hop- 

pne  of  kindred  in  all  cases.     1  Bou-  kins,  Real  Prop.,  484. 
vier    Law    Diet.    Consanguinity.      In 


Chap.  XIV.]  Of  Title  by  Descent.  241 

ances  shall  lineally  descend  to  the  issue  of  the  person  who 
last  died  actually  seised  in  infinitum,^^  but  shall  never  lin- 
eally ascend.^  [208]        • 

To  explain  the  more  clearly  both  this  and  the  subsequent 
rules,  it  must  first  be  observed  that  by  law  no  inheritance 
can  vest,  nor  can  any  person  be  the  actual  complete  heir 
of  another,  till  the  ancestor  is  previously  dead.  Nemo  est 
haeres  viventis.  Before  that  time  the  person  who  is  next 
in  the  line  of  succession  is  called  an  heir  apparent,  or  heir 
presumptive.  Heirs  apparent  are  such  whose  right  of  in- 
heritance is  indefeasible,  provided  they  outlive  the  ancesor, 
as  the  eldest  son  or  his  issue,  who  must  by  the  course  of  the 
common  law  be  heir  to  the  father  whenever  he  happens  to 
die.  Heirs  presumptive  are  such  who,  if  the  ancestor  should 
die  immediately,  would  in  the  present  circumstances  of 
things  be  his  heirs,  but  whose  right  of  inheritance  may  be 
defeated  by  the  contingency  of  some  nearer  heir  being 
born,  —  as  a  brother  or  nephew,  whose  presumptive  suc- 
cession may  be  destroyed  by  the  birth  of  a  child;  or  a 
daughter,  whose  present  hopes  may  be  hereafter  cut  off  by 
the  birth  of  a  son.  Nay,  even  if  the  estate  hath  descended, 
by  the  death  of  the  owner,  to  such  brother  or  nephew  or 
daughter,  in  the  former  cases  the  estate  shall  be  devested 
and  taken  away  by  the  birth  of  a  posthumous  child,  and  in 
the  latter  it  shall  also  be  totally  devested  by  the  birth  of  a 
posthumous  son. 

We  must  also  remember  that  no  jjerson  can  ba  properly 
such  an  ancestor  as  that  an  inheritance  of  lands  or  tene- 

3.  To  infinity.  the  inheritance  must  descend,  was  also 

4.  This  rule  lias  been  changed  by  changed  by  the  statute  of  William 
statute  both  in  England  and  the  IV.,  which  constitutes  the  last  pur- 
United  States,  and  persons  in  the  chaser,  and  not  the  person  last  seised 
ascending  line  are  in  certain  cases  the  person  from  whom  the  descent 
permitted  to  inherit.  Consult  3  &  4  shall  be  traced.  See  Broom,  Leg. 
Wm.  IV.,  ch.  106;  Hopkins,  Real  Max.,  *467,  468,  469.  The  same  rules 
Prop.,  482;  Broom's  Leg.  Max.,  *469;  prevail  in  this  country.  See  the  local 
and  the  local  statutes  of  the  several  statutes.  Livery  of  seisin  is  obsolete 
states.  and  has  been  abolished  by  statute  in 

The  maxim  nan  jus  sed  seisina  fa-      probably    most    of    the    states.      See 
cit  stipitem,  not  the  right  but  the  sei-      Rev.  Stat.  111.,  ch.  30,  sec.  1. 
sin  constitutes  the  stock  from  which 

IG  - 


242  Of  Title  by  Descent.  [Book  IT. 

merits  can  be  derived  from  him,  unless  he  hath  had  actual 
seisin  of  such  lands,  either  by  his  own  entry  or  by  the  pos- 
session of  his  own  or  his  ancestor's  lessee  for  years,  or  by 
receivinj?  rent  from  a  lessee  of  a  freehold ;  or  unless  he  hath 
had  what  is  equivalent  to  corporal  seisin  in  hereditaments 
that  are  incorporeal.  [209]  But  he  shall  not  be  accounted 
an  ancestor  who  hath  had  only  a  bare  right  or  title  to  enter 
or  be  otherwise  seised. 

II.  A  second  general  rule  or  canon  is,  that  the  male  issue 
shall  be  admitted  before  the  female.^  [212]  But  our  law 
does  not  extend  to  a  total  exclusion  of  females,  as  the  Salic 
law  and  others,  where  feuds  were  most  strictly  retained,  it 
only  postpones  them  to  males,  for  though  daughters  are 
excluded  by  sons,  yet  they  succeed  before  any  collateral 
relations.  [214] 

III.  A  third  rule  or  canon  of  descent  is  this:  that  where 
there  are  two  or  more  males  in  equal  degree,  the  eldest  only 
shall  inherit,  but  the  females  all  together.^ 

However,  the  succession  by  primogeniture,  even  among  females,  took 
place  as  to  the  inheritance  of  Uie  crown,  wherein  the  necessity  of  a 
sole  and  determinate  succession  is  as  great  in  the  one  sex  as  the  other. 
[216]  And  the  right  of  sole  succession,  though  not  of  primogeniture, 
was  also  established  with  respect  to  female  dignities  and  titles  of  honor. 
For  if  a  man  holds  an  earldom  to  him  and  the  heirs  of  his  body,  and 
dies,  leaving  only  daughters,  the  eldest  shall  not  of  course  be  countess, 
but  the  dignity  is  in  suspense  or  abeyance  till  the  king  shall  declare  his 
pleasure;  for  he,  being  the  fountain  of  honor,  may  confer  it  on  which 
of  them  he  pleases. 

IV.  A  fourth  rule  or  canon  of  descents  is  this:  that  the 
lineal  descendants,  in  infinitum,  of  any  person  deceased 
shall  represent  their  ancestor;  that  is,  shall  stand  in  the 
same  place  as  the  person  himself  would  have  done  had  he 
been  living.  [217] 

Thus  the  child,  grandchild,  or  great-grandchild  (either 
male  or  female),  of  the  eldest  son  succeeds  before  the 

5.  In   this   country,   males   and  fe-  6.  Primogeniture   does   not    prevail 

males   inherit  equally,   but  the  male  in  this  country.   Hopkins,  Real  Prop., 

issue  are  still   preferred   in   England.  483. 
See  Hopkins,  Real  Prop.,  482. 


Chap.  XIV.]  Of  Title  by  Descent.  243 

younger  son,  and  so  in  infinitum;  and  these  representatives 
shall  take  neither  more  nor  less,  but  just  so  much  as  their 
principals  would  have  done.  This  taking  by  representation 
is  called  succession  in  stir'pes,  according  to  the  roots,  since 
all  the  branches  inherit  the  same  share  that  their  root, 
whom  they  represent,  would  have  done."  Among  these 
several  issues  or  representatives  of  the  respective  roots, 
the  same  preference  to  males  and  the  same  right  of  primo- 
geniture obtain  as  would  have  obtained  at  the  first  among 
the  roots  themselves,  the  sons  or  daughters  of  the  deceased. 
[218] 

V.  A  fifth  rule  is,  that  on  failure  of  lineal  descendants 
or  issue  of  the  person  last  seised,  the  inheritance  shall  de- 
scend to  his  collateral  relations  being  of  the  blood  of  the 
first  purchaser,  subject  to  the  three  preceding  rules.* 

Thus  if  Geoffrey  Stiles  purchases  land,  and  it  descends  to 
John  Stiles  his  son,  and  John  dies  seised  thereof  without 
issue,  whoever  succeeds  to  this  inheritance  must  be  of  the 
blood  of  Geoffrey,  the  first  purchaser  of  this  family.  The 
first  purchaser,  perquisitor,  is  he  who  first  acquired  the 
estate  to  his  family,  whether  the  same  was  transferred  to 
him  by  sale  or  by  gift,  or  by  any  other  method,  except  only 
that  of  descent. 

When  feuds  first  began  to  be  hereditary,  it  was  made  a 
necessary  qualification  of  the  heir  who  would  succeed  to  a 
feud  that  he  should  be  of  the  blood  of,  that  is,  lineally  de- 
scended from,  the  first  feudatory  or  purchaser.  [221]  In 
consequence  whereof,  if  a  vassal  died  seised  of  a  feud  of 
his  own  acquiring,  or  feudum  novum^  it  could  not  descend 
to  any  but  his  own  offspring,  no,  not  even  to  his  brother, 
because  he  was  not  descended  nor  derived  his  blood  from 
the  first  acquirer.  But  if  it  was  feudum  antiquum,^  that 
is,  one  descended  to  the  vassal  from  his  ancestors,  then  his 

7.  In  some  of  the  states  the  heirs  itself.  Statutes  have  no  extrjt-territo- 
take  per  stirpes  and  in  others  per  rial  force  and  the  laws  of  descent  are 
capita,  that  is,  share  and  share  alike.  strictly  local  and  must  be  consulted 
Hopkins,    Real    Prop.,    483;    1    Stim.  in  every  ease. 

Am.  St.  Law,  §  3137.  9.  A  new  feud. 

8.  The  statutes  on  this  subject  are  1.  An  old  feud.  .     .     - 
diverse  and  each  state  is  a  law  unto 


244  Of  Title  by  Descent.  [Book  II. 

brotlier,  or  such  other  collateral  relation  as  was  descended 
and  derived  his  blood  from  the  first  ieudatory,  might  suc- 
ceed to  such  inheritance.  However,  in  process  of  time, 
when  the  feodal  rigor  was  in  part  abated,  a  method  was 
invented  to  let  in  the  collateral  relations  of  the  grantee  to 
the  inheritance  by  granting  him  a  feudum  novum  to  hold 
ut  feudum  antiquum,  that  is,  with  all  the  qualities  annexed 
of  a  feud  derived  from  his  ancestors,  and  then  the  collateral 
relations  were  admitted  to  succeed  even  in  infinitum,  be- 
cause they  might  have  been  of  the  blood  of,  that  is,  de- 
scended from,  the  first  imaginary  purchaser. 

Of  this  nature  are  all  the  grants  of  fee-simple  estates  of 
this  kingdom,  for  there  is  now  in  the  law  of  England  no 
such  thing  as  a  grant  of  a  feudum  novum  to  be  held  ut 
novum,  unless  in  the  case  of  a  fee-tail,  and  there  we  see 
that  this  rule  is  strictly  observed,  and  none  but  the  lineal 
descendants  of  the  first  donee  (or  purchaser)  are  admitted. 
But  every  grant  of  lands  in  fee-simple  is  with  us  a  feudum 
novum  to  be  held  ut  antiquum,  as  a  feud  ivhose  antiquity  is 
indefinite,  and  therefore  the  collateral  kindred  of  the 
grantee,  or  descendants  from  any  of  his  lineal  ancestors,  by 
whom  the  lands  might  have  possibly  been  purchased,  are 
capable  of  being  called  to  the  inheritance.   [222] 

Yet  when  an  estate  hath  really  descended  in  a  course  of 
inheritance  to  the  person  last  sei.sed,  the  strict  rule  of  the 
feodal  law  is  still  observed,  and  none  are  admitted  but  the 
heirs  of  those  through  whom  the  inheritance  hath  passed, 
for  all  others  have  demonstrably  none  of  the  blood  of  the 
first  purchaser  in  them,  and  therefore  shall  never  succeed. 
As,  if  lands  come  to  John  Stiles  by  descent  from  his  mother, 
Lucy  Baker,  no  relation  of  his  father  (as  such)  shall  ever 
be  his  heir  of  these  lands.  And  vice  versa,  if  they  de- 
scended from  his  father,  Geoffrey  Stiles,  no  relation  of  his 
mother  (as  such)  shall  ever  be  admitted  thereto,  for  his 
father's  kindred  have  none  of  his  mother's  blood,  nor  have 
his  mother's  relations  any  share  of  his  father's  blood. 

Here  we  may  observe  that  so  far  as  the  feud  is  really 
antiquum,  the  law  traces  it  back,  and  will  not  suffer  any  to 
inherit  but  the  blood  of  those  ancestors  from  whom  the 


Chap.  XIV.]  Of  Title  by  Descent.  245 

feud  was  conveyed  to  the  late  proprietor.  [223]  But  when, 
through  length  of  time,  it  can  trace  it  no  farther,  as  if  it 
be  not  known  whether  his  grandfather,  George  Stiles,  in- 
herited it  from  his  father,  Walter  Stiles,  or  his  mother, 
Christian  Smith,  or  if  it  appear  that  his  grandfather  was 
the  first  grantee,  and  so  took  it,  by  the  general  law,  as  a 
feud  of  indefinite  antiquity, —  in  either  of  these  cases  the 
law  admits  the  descendants  of  any  ancestor  of  George  Stiles, 
either  paternal  or  maternal,  to  be  in  their  due  order  the 
heirs  to  John  Stiles  of  this  estate ;  because  in  the  first  case 
it  is  really  uncertain,  and  in  the  second  case  it  is  supposed 
to  be  uncertain,  whether  the  grandfather  derived  his  title 
from  the  part  of  his  father  or  his  mother. 

This,  then,  is  the  great  and  general  principle  upon  which 
the  law  of  collateral  inheritance  depends:  that,  upon  failure 
of  issue  in  the  last  proprietor,  the  estate  shall  descend  to  the 
blood  of  the  first  purchaser;  or,  that  it  shall  result  back 
to  the  heirs  of  the  body  of  that  ancestor  from  whom  it 
either  really  has,  or  is  supposed  by  fiction  of  law  to  have 
originally  descended.^ 

The  rules  of  inheritance  that  remain  are  only  rules  of 
evidence  calculated  to  investigate  who  the  purchasing  an- 
cestor-was,  which  in  feudis  vere  antiquis^  has,  in  process 
of  time,  been  forgotten,  and  is  supposed  so  to  be  in  feuds 
that  are  held  ut  antiquis.*   [224] 

VI.  A  sixth  rule  or  canon,  therefore,  is,  that  the  collateral 
heir  of  the  person  last  seised  must  be  his  next  collateral 
kinsman  of  the  whole  blood.  ^ 

First,  he  must  be  his  next  collateral  kinsman,  either  per- 
sonally or  jure  representation  is^^  which  proximity  is  reckoned 
according  to  the  canonical  degrees  of  consanguinity  before 
mentioned. 

The  right  of  representation  being  thus  established,  the" 

2.  See,  as  to  ancestral  lands,  Hop-  ants  from  the  same  pair  of  ancestors, 
kins,  Real  Prop.,  484,  485.  Hopkins,  Real  Prop.,  485.     This   rule 

3.  In  feuds  really  ancient.  has  been  changed  in  most,  if  not  alt, 

4.  As  ancient.  of  the  states.     Hopkins,  Real   Prop.; 

5.  By    whole   blood    is    meant   that  1  Stim.  Am.  Stat.  Law,  §  3133. 
the  heir  and  the  intestate  are  descend-  6.  By  right  of  representation. 


246  Of  Title  by  Descent.  [Book  II. 

former  part  of  the  present  rule  amounts  to  this:  that  on 
failure  of  issue  of  the  person  last  seised,  the  inheritance 
shall  descend  to  the  other  subsisting  issue  of  his  next  imme- 
diate ancestor.  [225]  Thus,  if  John  Stiles  dies  without 
issue,  his  estate  shall  descend  to  Francis  his  brother  or  his 
representatives,  he  being  lineally  descended  from  Geoffrey 
Stiles,  John's  next  immediate  ancestor,  or  father.  On 
failure  of  brethren  or  sisters  and  their  issue,  it  shall  de- 
scend to  the  uncle  of  John  Stiles,  the  lineal  descendant  of 
his  grandfather  George,  and  so  on  in  infinitum.  But  though 
the  common  ancestor  be  thus  the  root  of  the  inheritance, 
yet  with  us  it  is  not  necessary  to  name  him  in  making  out 
the  pedigree  or  descent.  [226]  For  the  descent  between 
two  brothers  is  held  to  be  an  immediate  descent,  and  there- 
fore title  may  be  made  by  one  brother  or  his  representatives 
to  or  through  another  without  mentioning  their  common 
father.  But  though  the  common  ancestors  are  not  named 
in  deducing  the  pedigree,  yet  the  law  still  respects  them 
as  the  fountains  of  inheritable  blood;  and,  therefore,  in 
order  to  ascertain  the  collateral  heir  of  John  Stiles,  it  is 
first  necessary  to  reeur  to  his  ancestors  in  the  first  degree, 
and  if  they  have  left  any  other  issue  besides  Johp,  that 
issue  will  be  his  heir.  On  default  of  such,  we  must  ascend 
one  step  higher,  to  the  ancestors  in  the  second  degree,  and 
then  to  those  in  the  third  and  fourth,  and  so  upwards  in 
infinitum,  till  some  couple  of  ancestors  be  found  who  have 
other  issue  descending  from  them  besides  the  deceased  in 
a  parallel  or  collateral  line.  From  these  ancestors  the  heir 
of  John  Stiles  must  derive  his  descent,  and  in  such  deriva- 
tion the  same  rules  must  be  observed  with  regard  to  the 
sex,  primogeniture,  and  representation,  that  have  before 
been  laid  down  with  regard  to  lineal  descents  from  the  per- 
son of  the  last  proprietor.  [227] 

But,  secondly,  the  heir  need  not  be  the  nearest  kinsman 
absolutely,  but  only  sub  modo;''  that  is,  he  must  be  the  near- 
est kinsman  of  the  whole  blood;  for  if  there  be  a  much 
nearer  kinsman  of  the  half  blood,  a  distant  kinsman  of  the 
whole  blood  shall  be  admitted,  and  the  other  entirely  ex- 

7.  In  a  manner. 


Chap.  XIV.]  Of  Title  by  Descent.  247 

eluded ;  nay,  the  estate  shall  escheat  to  the  lord  sooner  than 
the  half  blood  shall  inherit.  A  kinsman  of  the  whole  blood 
is  he  that  is  derived,  not  only  from  the  same  ancestor,  but 
from  the  same  couple  of  ancestors.  [See  Maine's  Anc. 
Law,  146.] 

By  our  law  as  it  now  stands,  the  crown — which  is  the  highest  inheri- 
tance in  the  nation— may  descend  to  the  half  blood  of  the  preceding 
sovereign,  so  that  it  he  the  blood  of  the  first  monarch  purchaser,  or,  in 
the  feodal  language,  conqueror  of  the  reigning  family.  [233]  Also  in 
estates  tail,  where  the  pedigree  from  the  first  donee  must  be  strictly 
proved,  half  blood  is  no  impediment  to  the  descent. 

VII.  The  seventh  and  last  rule  or  canon  is,  that  in  col- 
lateral inheritances  the  male  stocks  shall  be  preferred  to 
the  female, —  that  is,  kindred  derived  from  the  blood  of 
the  male  ancestors,  however  remote,  shall  be  admitted  be- 
fore those  from  the  blood  of  the  female,  however  near, — 
unless  where  the  lands  have  in  fact  descended  from  a 
female.«   [234] 

8.  Not  the  law  in  the  United  States.  Hopkins,  Real  Prop.,  485. 


248  Of  Title  by  Pdbchase.  [Book  II. 

CHAPTER  XV. 

OF  TITLE  BY  PURCHASE  ;  AND,  I.  BY  ESCHEAT. 

Purchase  vPerquisitio),  taken  in  its  largest  and  most 
extensive  sense,  is  thus  defined  by  Littleton:  the  possession 
of  lands  and  tenements,  which  a  man  hath  by  his  own  act 
or  agreement,  and  not  by  descent  from  any  of  his  ancestors 
or  kindred.  [241]  In  this  sense  it  is  contradistinguished 
from  acquisition  by  right  of  blood,  and  includes  every  other 
method  of  coming  to  an  estate  but  merely  that  by  inherit- 
ance ;  wherein  the  title  is  vested  in  a  person,  not  by  his  own 
act  or  agreement,  but  by  the  single  operation  of  law. 

If  I  give  land  freely  to  another,  he  is  in  the  eye  of  the 
law  a  purchaser.  A  man  who  has  his  father's  estate  settled 
upon  him  in  tail  before  he  was  born  is  also  a  purchaser,  for 
he  takes  quite  another  estate  than  the  law  of  descents  would 
have  given  him.  Nay,  even  if  the  ancestor  devises  his  es- 
tate to  his  heir-at-law  by  will  ivith  other  limitations,  or  in 
any  other  shape  than  the  course  of  descents  would  direct, 
such  heir  shall  take  by  purchase.  But  if  a  man,  seised  in 
fee,  devises  his  whole  estate  to  his  heir-at-law,  so  that  the 
heir  takes  neither  a  greater  nor  a  less  estate  by  the  devise 
than  he  would  have  done  without  it,  he  shall  be  adjudged 
to  take  by  descent,  even  though  it  be  charged  with  incum- 
brances ;  this  being  for  the  benefit  of  creditors  and  others 
who  have  demands  on  the  estate  of  the  ancestor.  [242]  If 
a  remainder  be  limited  to  the  heirs  of  Sempronius,  here 
Sempronius  himself  takes  nothing;  but  if  he  dies  during 
the  continuance  of  the  particular  estate,  his  heirs  shall 
take  as  purchasers.  But  if  an  estate  be  made  to  A  for 
life,  remainder  to  his  right  heirs  in  fee,  his  heirs  shall  take 
by  descent;  for  it  is  an  ancient  rule  of  law  that  whenever 
the  ancestor  takes  an  estate  for  life  the  heir  cannot  by  the 
same  conveyance  take  an  estate  in  fee  by  purchase,  but 
only  by  descent.  And  if  A  dies  before  entry,  still  his  heirs 
shall  take  by  descent  and  not  by  purchase;  for  where  the 
heir  takes  anything  that  might  have  vested  in  the  ancestor, 


Chap.  XV.]  Or  Title  by  Purchase.  249 

he  takes  by  way  of  descent.  The  ancestor  during  his  life 
beareth  in  himself  all  his  heirs,  and  therefore,  when  once 
he  is  or  might  have  been  seised  of  the  lands,  the  inheritance 
so  limited  to  his  heirs  vests  in  the  ancestor  himself;  and 
the  word  "  heirs  "  in  this  case  is  not  esteemed  a  word  of 
purchase  but  a  Avord  of  limitation,  inuring  so  as  to  increase 
the  estate  of  the  ancestor  from  a  tenancy  for  life  to  a  fee- 
simple.^ 

The  difference  in  effect  between  the  acquisition  of  an 
estate  by  descent  and  by  purchase,  consists  principally  in 
these  two  points:  1.  That  by  purchase  the  estate  acquires  a 
new  inheritable  quality,  and  is  descendibl  to  the  owner's 
blood  in  general,  and  not  the  blood  only  of  some  particular  an- 
cestor. [243]  For  when  a  man  takes  an  estate  by  purchase^ 
he  takes  it  not  ut  feudum  paternum  or  maternum,^  which 
would  descend  only  to  the  heirs  by  the  father's  or  the 
mother's  side,  but  he  takes  it  ut  feudum  antiquum,^  as  a 
feud  of  indefinite  antiquity,  whereby  it  becomes  inheritable 
to  his  heirs  general,  first  of  the  paternal  and  then  of  the 
maternal  line.  2.  An  estate  taken  by  purchase  will  not 
make  the  heir  answerable  for  the  acts  of  the  ancestor  as  an 
estate  by  descent  will.  For  if  the  ancestor,  by  any  deed, 
obligation,  covenant,  or  the  like,  bindeth  himself  and  his 
heirs  and  dieth,  this  deed,  obligation,  or  covenant  shall  be 
binding  upon  the  heir,  so  far  forth  only  as  he  (or  any  other 
in  trust  for  him)  had  any  estate  of  inheritance  vested  in  him 
by  descent  from  (or  any  estate  pur  auter  vie'^  coming  to 
him  by  special  occupancy  as  heir  to)  that  ancestor  suffi- 
cient to  answer  the  charge,  whether  he  remains  in  possession 
or  hath  alienated  it  before  action  brought,  which  sufficient 

1.  This    is    the    celebrated    rule    in  limitation  and  not  of  purchase.     See 

Shelley's   Case,   1   Rep.   98.     In   some  Hopkins,   Real   Prop.,   295-298,   for   a 

of  the  states  it  is  still  the  law;    in  detailed  explanation.    In  Illinois  it  is 

others    it    has    been    abolished.      The  held   that   the  rule  yields   to  the  in- 

rule  may  be   formulated   as   follows:  tention  of  the  donor  or  testator  when 

Where  an  estate  of  freehold  is  limited  clearly   expressed   in   the   instrument, 

to  a  person  and  by  the  same  convey-  Belslay  v.  Eagel,   107  111.  182;   Gris- 

ance  an  estate  in  form,  a  remainder  wold  v.  Hicks,  132  id.  494. 

is  given  either  mediately  or  immedi-  2.  As  a  fee  paternal  or  maternal, 

ately  to  his  heirs  or  the  heirs  of  his  3.  As  an   ancient  fee. 

body,  the  word  "  heirs  "  is  a  word  of  4.  For  the  life  of  another. 


250  Of  Title  by  Escheat.  [Book  II. 

estate  is  in  the  law  called  assets,  from  the  French  word 
assez,  enough.  [244]  Therefore,  if  a  man  covenants  for 
himself  and  his  heirs  to  keep  my  house  in  repair,  I  can  then 
(and  then  only)  compel  his  heir  to  perform  this  covenant 
when  he  has  an  estate  sufficient  for  this  purpose,  or  assets 
by  descent  from  the  covenantor;  for  though  the  covenant 
descends  to  the  heir  whether  he  inherits  any  estate  or  no, 
it  lies  dormant,  and  is  not  compulsory  until  he  has  assets 
by  descent. 

This  being  the  legal  signification  of  the  word  purchase, 
in  this  sense  it  includes  the  five  following  methods  of  ac- 
quiring a  title  to  estates:  1.  Escheat.  2.  Occupancy. 
3.  Prescription.    4.  Forfeiture.     5.  Alienation. 

I.  Escheat  was  one  of  the  fruits  and  consequences  of 
feodal  tenure.  The  word  itself  is  originally  French  or 
Norman,  in  which  language  it  signifies  chance  or  accident; 
and  with  us  it  denotes  an  obstruction  of  the  course  of  de- 
scent, and  a  consequent  determination  of  the  tenure  by  some 
unforeseen  contingency,  in  which  case  the  land  naturally 
results  back  by  a  kind  of  reversion  to  the  original  grantor 
or  lord  of  the  fee.^ 

In  order  to  complete  this  title  by  escheat,  it  is  necessary 
that  the  lord  perform  an  act  of  his  own,  by  entering  on  the 
lands  and  tenements  so  escheated,  or  suing  out  a  lorit  of 
escheat,  on  failure  of  which,  or  by  doing  any  act  that 
amounts  to  an  implied  waiver  of  his  right,  as  by  accepting 
homage  or  rent  of  a  stranger  who  usurps  the  possession,  his 
title  by  escheat  is  barred.  [245]  It  is  therefore  in  some 
respect  a  title  acquired  by  his  own  act,  as  well  as  by  act  of 
law. 

The  law  of  escheats  is  founded  upon  this  single  principle, 
that  the  blood  of  the  person  last  seized  in  fee-simple  is,  by 
some  means  or  other,  utterly  extinct  and  gone;  and,  since 
none  can  inherit  his  estate  but  such  as  are  of  his  blood  and 
consanguinity,  it  follows  as  a  regular  consequence  that 

5.  With  us  the  land  in  default  of  the  county  in  which  the  property  is 

heirs  escheats  to  the  state.    Hopkins,  situated.     Rev.  Stat.  111.,  ch.  49,  sec. 

Real    Prop.,   485,   486;    1    Stim.   Am.  1.     Prior   to  the  Act  of   1374   it  es- 

Stat.  Law,  §§  1151,  3125.    In  Illinois  cheated  to  the  «tate. 
real    and    personal   esta'e   escheat   to 


Chap.  X v.]  Or  Title  by  Escheat.  251 

when  such  blood  is  extinct,  the  inheritance  itself  must  fail ; 
the  land  must  become  what  the  feodal  writers  denominate 
feudum  apcrtum,^  and  must  result  back  again  to  the 
lord  of  the  fee,  by  whom,  or  by  those  wh6se  estate  he  hath, 
it  was  given. 

Escheats  are  frequently  divided  into  those  propter  de- 
fectum sanguinis,^  and  those  propter  delictum  tenentis,'' 
the  one  sort  if  the  tenant  dies  without  heirs;  the  other,  if 
his  blood  be  attainted.  But  both  these  species  may  well 
be  comprehended  under  the  first  denomination  only,  for  he 
that  is  attainted  suffers  an  extinction  of  his  blood  as  well  as 
he  that  dies  without  relations.  [246]  The  inheritable 
quality  is  expunged  in  one  instance,  and  expires  in  the 
other. 

Escheats,  therefore,  arising  merely  upon  the  deficiency  of 
the  blood,  whereby  the  descent  is  impeded,  their  doctrine 
will  be  better  illustrated  by  considering  the  several  cases 
wherein  hereditary  blood  may  be  deficient,  than  by  any 
other  method  whatsover, 

1,  2,  3.  First,  when  the  tenant  dies  without  any  relations 
on  the  part  of  sinj  of  his  ancestors;  secondly,  when  he  dies 
without  any  relations  on  the  part  of  those  ancestors  from 
whom  his  estate  descended;  thirdly,  when  he  dies  without 
any  relations  of  the  whole  blood. 

4.  A  monster,  which  hath  not  the  shape  of  mankind,  but 
in  any  part  evidently  bears  the  resemblance  of  the  brute 
creation,  hath  no  inheritable  blood,  and  cannot  be  heir  to 
any  land,  albeit  it  be  brought  forth  in  marriage;  but,  al- 
though it  hath  deformity  in  any  part  of  its  body,  yet  if  it 
hath  human  shape  it  may  be  heir.  Our  law  will  not  admit 
a  birth  of  this  kind  to  be  such  an  issue  as  shall  entitle  the 
husband  to  be  tenant  by  the  curtesy,  because  it  is  not 
capable  of  inheriting.  And,  therefore,  if  there  appears  no 
other  heir  than  such  a  prodigious  birth,  the  land  shall  es- 
cheat to  the  lord.^   [247] 

6.  An  open  fee.  9.  3    Bouvier   Law    Diet.   Monster; 

7.  On  account  of  defect  of  blood:  Ewell's  Med.  Jur.  ( 2d  Ed. ) ,  177 ;  Ogs- 

8.  On  account  of  the  crime  of  ttie  ton,  Med.  Jur.,  178;  2  Witthaus  & 
tenant.  Becker,  Med.  Jur.,  392. 


252  Of  Title  by  Escheat.  [Book  II. 

5.  Bastards  are  incapable  of  being  heirs.^  Bastards,  by 
our  law,  are  such  children  as  are  not  born  either  in  lawful 
wedlock  or  within  a  competent  time  after  its  determination. 
Such  are  held  to  be  nullius  filii,  the  sons  of  nobody.  Being 
thus  the  sons  of  nobody,  they  have  no  blood  in  them,  at 
least  no  inheritable  blood,  consequently  none  of  the  blood  of 
the  first  purchaser;  and,  therefore,  if  there  be  no  other 
claimant  than  such  illegitimate  children,  the  land  shall 
escheat  to  the  lord. 

There  is,  indeed,  one  instance  in  which  our  law  has  shown  them  some 
little  regard,  and  that  is  usually  termed  the  case  of  Bastard  eigne  and 
mulier  pnisne.  This  happens  when  a  man  has  a  bastard  son  and  after- 
wards marries  the  mother,  and  by  her  has  a  legitimate  son,  who,  in  the 
language  of  the  law,  is  called  a  mulier,  or,  as  Glanvil  expresses  it  in  his 
Latin,  AH«s  mulieratus,  the  woman  before  marriage  being  concubina,  and 
afterwards  mulier.  Now  here  the  eldest  son  is  bastard,  or  bastard  eigne, 
and  the  younger  son  is  legitimate,  or  mulier  puisne,  if  then  the  father 
dies,  and  the  bastard  eigne  enters  upon  his  land  and  enjoys  it  to  his 
death,  and  dies  seised  thereof,  whereby  the  inheritance  descends  to  his 
issue,  In  this  case  the  mulier  puisne,  and  all  other  heirs  (though  minors, 
feme-coverts,  or  under  any  incapacity  whatsoever)  are  totally  barred  of 
their  right. 

As  bastards  cannot  be  heirs  themselves,  so  neither  can 
they  have  any  heirs  but  those  of  their  own  bodies.  [249] 
For  as  all  collateral  kindred  consists  in  being  derived  from 
the  same  common  ancestor,  and  a  bastard  has  no  legal  an- 
cestors, he  can  have  no  collateral  kindred,  and,  conse- 
quently, can  have  no  legal  heirs  but  such  as  claim  by  a 
lineal  descent  from  himself.  And,  therefore,  if  a  bastard 
purchases  land  and  dies  seised  thereof  without  issue  and 
intestate,  the  land  shall  escheat  to  the  lord  of  the  fee. 

6.  Aliens  also  are  incapable  of  taking  by  descent,  or  in- 
heriting, for  they  are  not  allowed  to  have  any  inheritable 
blood  in  them.^  Wherefore,  if  a  man  leaves  no  other  rela- 
tions but  aliens,  his  land  shall  escheat  to  the  lord. 

1.  This   rule  has  been  clianged   by  2.  Clianged  by  statute  in  this  coun- 

Ftatute  in   some  of  the   states.     See      try.     See  local  statutes  and  ante. 
local  statutes. 


Chap.  XV.]  Of  Title  by  Escheat.  253 

As  aliens  cannot  inherit,  so  far  they  are  on  a  level  with  bastards;  but 
as  they  are  also  disabled  to  hold  by  purchase,  they  are  under  still 
greater  disabilities.  And  as  they  can  neither  hold  by  purchase  nor  by 
inheritance,  it  is  almost  superfluous  to  say  that  they  can  have  no  heirs, 
since  they  can  have  nothing  for  an  heir  to  inherit;  but  so  it  is  expressly 
holden,  because  they  have  not  in  them  any  inheritable  blood. 

And  further,  if  an  alien  be  made  a  denizen  by  the  king's  letters-patent 
and  then  purchases  lands  (which  the  law  allows  such  a  one  to  do),  his 
son,  born  before  his  denization,  shall  not  (by  the  common  law)  inherit 
those  lands,  but  a  son  born*  afterwards  may,  even  though  his  elder 
brother  be  living;  for  the  father,  before  denization,  had  no  inheritable 
blood  to  communicate  to  his  eldest  son,  but  by  denization  it  acquires  an 
hereditary. quality  which  will  be  transmitted  to  his  subsequent  posterity. 
Yet  if  he  had  been  naturalized  by  act  of  parliament  such  eldest  son 
might  then  have  inherited,  for  that  cancels  all  defects,  and  is  allowed 
to  have  a  retrospective  energy,  which  simple  denization  has  not. 

It  is  now  held  for  law,  that  the  sons  of  an  alien  born  here  may  inherit 
to  each  other,  the  descent  from  one  brother  to  another  being  an  immediate 
descent.  [250] 

7.  By  attainder,  also,  for  treason  or  other  felony,  the 
blood  of  the  person  attainted  is  so  corrupted  as  to  be  ren- 
dered no  longer  inheritable.^   [251] 

Great  care  must  be  taken  to  distinguish  between  forfeiture  of  lands 
to  the  king  and  this  species  of  escheat  to  the  lord.  The  doctrine  of  es- 
cheat upon  attainder,  taken  singly,  is  this:  that  the  blood  of  the  tenant, 
by  the  commission  of  any  felony  (under  which  denomination  all  treasons 
were  formerly  comprised),  is  corrupted  and  stained,  and  the  original 
donation  of  the  feud  is  thereby  determined,  it  being  always  granted  to 
the  vas-sal  on  the  implied  condition  of  dum  bene  se  gesserit.  [252]  Upon 
the  thorough  demonstration  of  which  guilt,  by  legal  attainder,  the  feodal 
covenant  and  mutual  bond  of  fealty  are  held  to  be  broken,  the  estate  in- 
stantly falls  back  from  the  offender  to  the  lord  of  the  fee,  and  the  inherit- 
able quality  of  his  blood  is  extinguished  and  blotted  out  forever.  In 
this  situation  the  law  of  feodal  escheat  was  brought  into  England  at  the 
Conquest,  and  in  general  superadded  to  the  ancient  law  of  forfeiture. 
In  consequence  of  which  corruption  and  extinction  of  hereditary  blood, 
the  land  of  all  felons  would  immediately  revest  in  the  lord,  but  that 
the  superior  law  of  forfeiture  intervenes,  and  intercepts  it  in  its  passage: 
in  case  of  treason,  forever;  in  case  of  other  felony,  for  only  a  year  aRd 
a  day;  after  which  time  it  goes  to  the  lord  in  a  regular  course  of  escheat, 

3.  Not  law  in  the  United  States. 
U.  S.  Const.,  art.  1,  sec.  10;  Cooley, 
Const.  Lim.  (7th  Ed.),  36,  368. 


254  Of  Title  by  Escheat.  .       [Book  TI. 

as  it  would  have  done  to  the  heir  of  the  felon  in  case  the  feodal  tenures 
had  never  been  introduced. 

Hitherto  we  have  only  spoken  of  estates  vested  in  the  offender  at  the 
time  of  his  offence  or  attainder.  [253]  And  here  the  law  of  forfeiture 
Btops,  but  the  law  of  escheat  pursues  the  matter  still  farther.  For  the 
blood  of  the  tenant  being  utterly  corrupted  and  extinguished,  it  follows 
not  only  that  all  that  he  now  has  shall  escheat  from  him,  but  also  that 
he  shall  be  incapable  of  inheriting  anything  for  the  future. 

There  is  yet  a  further  consequence  of  the  corruption  and  extinction 
of  hereditary  blood,  which  is  this:  that  the  person  attainted  shall  not 
only  be  incapable  himself  of  inheriting,  or  transmitting  his  own  property 
by  heirship,  but  shall  also  obstruct  the  descent  of  lands  or  tenements 
to  his  posterity  in  all  cases  where  they  are  obliged  to  derive  .their  title 
through  him  from  any  remoter  ancestor.  [254] 

This  corruption  of  blood  cannot  be  absolutely  removed  but  ly  «"- 
thority  of  parliament.  The  king  may  excuse  the  public  punishment  of  an 
offender,  but  cannot  abolish  the  private  right  which  has  accrued  or  may 
accrue  to  individuals  as  a  consequence  of  the  criminal's  attainder.  He 
may  remit  a  forfeiture,  in  which  the  interest  of  the  crown  is  alone  con- 
cerned, but  he  cannot  wipe  away  the  corruption  of  blood;  for  therein  a 
third  person  hath  an  interest,  the  lord  who  claims  by  escheat.  If,  there- 
fore, a  man  hath  a  son  and  is  attainted  and  afterwards  pardoned  by  the 
king,  this  son  can  never  inherit  to  his  father  or  father's  ancestors,  be- 
cause his  paternal  blood,  being  once  thoroughly  corrupted  by  his  father's 
attainder,  must  continue  so.  But  if  the  son  had  been  born  after  the 
pardon,  he  might  inherit,  because  by  the  pardon  the  father  is  made  a 
new  man,  and  may  convey  new  inheritable  blood  to  his  after-born 
children. 

Herein  there  is  however  a  difference  between  aliens  and  persons  at- 
tainted. Of  aliens  who  could  never  by  any  possibility  be  heirs,  the  law 
takes  no  notice,  and  therefore  we  have  seen  that  an  alien  elder  brother 
shall  not  impede  the  descent  to  a  natural-born  younger  brother.  [255] 
But  in  attainders  it  is  otherwise;  for  if  a  man  hath  issue  a  son,  and  is 
attainted  and  afterwards  pardoned,  and  then  hath  issue  a  second  son 
and  dies,  here  the  corruption  of  blood  is  not  removed  from  the  eldest, 
and  therefore  he  cannot  be  heir;  neither  can  the  younger  be  heir,  for  he 
hath  an  elder  brother  living  of  whom  the  law  takes  notice,  as  he  once 
had  a  possibility  of  being  heir,  and  therefore  the  younger  brother  shall 
not  inherit,  but  the  land  shall  escheat  to  the  lord;  though  had  the  elder 
died  without  issue  in  the  life  of  the  father,  the  younger  son  born  after 
the  pardon  might  well  have  inherited,  for  he  hath  no  corruption  of 
blood.  So  if  a  man  hath  issue  two  sons,  and  the  elder  in  the  lifetime 
of  the  father  hath  issue,  and  then  is  attainted  and  executed,  and  after- 
wards the  father  dies,  the  lands  of  the  father  shall  not  descend  to  the 
younger  son,  for  the  issue  of  the  elder  which  had  once  a  possibility  to 
inherit  shall  impede  the  descent  to  the  younger,  and  the  land  shall  es- 
cheat to  the  lord. 


Chap.  XV.]  Of  Title  by  Escheat.  255 

There  is  one  singular  instance  in  which  lands  held  in 
fee-simple  are  not  liable  to  escheat  to  the  lord,  even  when 
their  owner  is  no  more,  and  hath  left  no  heirs  to  inherit 
them.  And  this  is  the  case  of  a  corporation,  for  if  that 
comes  by  any  accident  to  be  dissolved,  the  donor  or  his 
heirs  shall  have  the  land  again  in  reversion,  and  not  the 
lord  by  escheat,  which  is  perhaps  the  only  instance  where 
a  reversion  can  be  expectant  on  a  grant  in  fee-simple  abso- 
lute. But  the  law,  we  are  told,  doth  tacitly  annex  a  con- 
dition to  every  such  gift  or  grant,  that  if  the  corporation 
be  dissolved  the  donor  or  grantor  shall  re-enter,  for  the 
cause  of  the  gift  or  grant  faileth.^   [257] 

r^ ■ ~^-~^.^m 

4.  2  Kent  Com.  307;  Co.  Litt.,  13b;  corporation  holds  the  legal  title  to  its 

Clark  on  Corp.    (2d  Ed.),  247.     But  property    in    equity    merely    for    the 

as  respects  private  business  corpora-  benefit  of  the  stockholders  and  cred- 

tions,  this  is  not  the  rule.    A  private  itors.    Clark  on  Corp.   (2d  Ed.),  248. 


256  Of  Title  by  Occupancy;  [Book  IT. 


CHAPTER  XVI. 

II.  OF  TITLE  BY  OCCUPANCY. 

Occupancy  is  the  taking  possession  of  those  things  which 
before  belonged  to  nobody.  This,  as  we  have  seen,  is  the 
true  ground  and  foundation  of  all  property,  or  of  holding 
those  things  in  severalty  which,  by  the  law  of  nature  un- 
qualified by  that  of  society,  were  common  to  all  mankind. 
[258] 

This  right  of  occupancy,  so  far  as  it  concerns  real  prop- 
erty (for  of  personal  chattels  I  am  not  in  this  place  to 
speak),  hath  been  confined  by  the  laws  of  England  within 
a  very  narrow  compass,  and  was  extended  only  to  a  single 
instance:  namely,  where  a  man  was  tenant  pur  auter  vie,^ 
or  had  an  estate  granted  to  himself  only  (without  mention- 
ing his  heirs)  for  the  life  of  another  man,  and  died  during 
the  life  of  cestuy  que  vie,  or  him  by  whose  life  it  was  holden. 
In  this  case  he  that  could  first  enter  on  the  land  might 
lawfully  retain  the  possession,  so  long  as  cestuy  que  vie 
lived  by  right  of  occupancy.  It  did  not  revert  to  the 
grantor,  though  it  formerlj^  was  supposed  so  to  do,  for  he 
had  parted  with  all  his  interest  so  long  as  cestuy  que  vie 
lived;  it  did  not  escheat  to  the  lord  of  the  fee,  for  all  es- 
cheats must  be  of  the  absolute  entire  fee,  and  not  of  any 
particular  estate  carved  out  of  it,  much  less  of  so  minute  a 
remnant  as  this;  it  did  not  belong  to  the  grantee,  for  he 
was  dead ;  it  did  not  descend  to  his  heirs,  for  there  were  no 
words  of  inheritance  in  the  grant,  nor  could  it  vest  in  his 
executors,  for  no  executors  could  succeed  to  a  freehold. 
[259]  Belonging,  therefore,  to  nobody,  like  the  haereditas 
jacens^  of  the  Romans,  the  law  left  it  open  to  be  seised  and 
appropriated  by  the  first  person  that  could  enter  upon  it 
during  the  life  of  cestuy  que  vie  under  the  name  of  an  occu- 
pant.   But  there  was  no  right  of  occupancy  allowed  where 

1.  For  the  life  of  another. 

2.  An    inheritance   that   has    failed 
or  fallen. 


Chap.  XVL]  '        Or  Title  by  Occupaxcy.  257 

the  king  had  the  reversion  of  the  lands,  for  the  reversioner 
liath  an  equal  right  with  any  other  man  to  enter  upon  the 
vacant  possession,  and  where  the  king's  title  and  a  subject's 
concur,  the  king's  shall  be  always  preferred.  Against  the 
king,  therefore,  there  could  be  no  prior  occupant,  because 
nullum  tempus  occurrit  regi.^  And  even  in  the  case  of  a 
subject,  had  the  estate  pur  auter  vie  been  granted  to  a  man 
and  his  heirs  during  the  life  of  cestuy  que  vie,  there  the 
heir  might  and  still  may  enter  and  hold  possession,  and  is 
called  in  law  a  special  occupant,  as  having  a  special  exclu- 
sive right,  by  the  terms  of  the  original  grant,  to  enter  upon 
and  occupy  this  haereditas  jacens  during  the  residue  of  the 
estate  granted. 

But  the  title  of  common  occupancy  is  now  reduced  almost 
to  -nothing  by  two  statutes :  the  one  29  Car.  II,  c.  3,  which 
enacts  (according  to  the  ancient  rule  of  law)  that  where  there 
is  no  special  occupant  in  whom  the  estate  may  vest,  the  ten- 
ant pur  auter  vie  may  devise  it  by  will,  or  it  shall  go  to  the 
executors  or  administrators,  and  be  assets  in  their  hand  for 
payment  of  debts ;  the  other  that  of  14  Geo.  II.  c.  20,  which 
enacts  that  the  surplus  of  such  estate  pur  auter  vie,  after 
payment  of  debts,  shall  go  in  a  course  of  distribution  like 
a  chattel  interest.  [260]  By  these  two  statutes  the  title  of 
common  occupancy  is  utterly  extinct  and  abolished;  though 
that  of  special  occupancy  by  the  heir  at  law  continues  to 
this  day,*  such  heir  being  held  to  succeed  to  the  ancestor's 
estate,  not  by  descent,  for  then  he  must  take  an  estate  of 
inheritance,  but  as  an  occupant  specially  marked  out  and 
appointed  by  the  original  grant.  But  as  before  the  statutes 
there  could  no  common  occupancy  be  had  of  incorporeal 
hereditaments,  as  of  rents,  tithes,  advowsons,  commons,  or 
the  like  (because  with  respect  to  them  there  could  be  no 
actual  entry  made  or  corporal  seisin  had,  and  therefore  by 
the  death  of  the  grantee  pur  auter  vie  a  grant  of  such  heredi- 
taments was  entirely  determined),  so  now,  I  apprehend,  not- 
withstanding these  statutes,  such  grant  would  be  deter- 

3.  No  time  bars  the  king. 

4.  See  Rice's  Modern  Law  of  Real 
Prop.,  136-138,  and  local  statutea. 

17 


258  Of  Title  by  Occupancy.        ''        [Book  IL 

mined  likewise,  and  the  hereditaments  would  not  be  devisable, 
nor  vest  in  the  executors,  nor  go  in  a  course  of  distribution. 
In  some  cases  where  the  laws  of  other  nations  give  a 
rig-ht  by  occupancy,  as  in  lands  newly  created  by  the  rising 
of  an  island  in  the  sea  or  in  a  river,  or  by  the  alluvion  or 
dereliction  of  the  waters,  —  in  these  instances  the  law  of 
England  assigns  them  an  immediate  owner.  [261]  For 
Bracton  tells  us  that  if  an  island  arise  in  the  middle  of  a 
river,^  it  belongs  in  common  to  those  who  have  lands  on 
each  side  thereof;  but  if  it  be  nearer  to  one  bank  than  the 
other,  it  belongs  only  to  him  who  is  proprietor  of  the  nearest 
shore,  w^hich  is  agreeable  to  and  probably  copied  from  the 
civil  law\  However,  in  case  a  new  island  rise  in  the  sea, 
though  the  civil  law  gives  it  to  the  first  occupant,  yet  ours 
gives  it  to  the  king.^  And  as  to  lands  gained  from  the  sea, 
either  by  alluvion,  by  the  washing  up  of  sand  and  earth, 
so  as  in  time  to  make  terra  firma,  or  by  dereliction,  as  when 
the  sea  shrinks  back  below  the  usual  watermark,  —  in  these 
cases  the  law  is  held  to  be  that  if  this  gain  be  by  little  and 
little,  by  small  and  imperceptible  degrees,  it  shall  go  to  the 
owner  of  the  land  adjoining.  [262]  For  de  minimis  non 
curat  lex  J  And  besides,  these  owners  being  often  losers  by 
the  breaking  in  of  the  sea,  or  at  charges  to  keep  it  out,  this 
possible  gain  is  therefore  a  reciprocal  consideration  for 
such  possible  charge  or  loss.  But  if  the  alluvion  or  derelic- 
tion be  sudden  and  considerable,  in  this  case  it  belongs  to 
the  king,  for  as  the  king  is  lord  of  the  sea,  and  so  ow^ner  of 
the  soil  while  it  is  covered  wdth  water,  it  is  but  reasonable 
he  should  have  the  soil  when  the  water  has  left  it  dry.  In 
the  same  manner,  if  a  river  running  between  two  lordships 
by  degrees  gains  upon  the  one,  and  thereby  leaves  the  other 

5.  If  the  river  be  non-navigable  in  covering  and  taking  possession  of  it. 
the  common  law  sense,  the  adjacent  As  to  the  rights  of  riparian  owners 
proprietors  would  not  be  tenants  in  in  general,  see  Cooley  on  Torts  (St\i- 
common,  but  in  severalty  of  the  re-  dents'  Ed.),  370;  Black's  Pomeroy  on 
spective  portions  on  each  side  of  the  Rip.  Rights  (1893)  ;  Gould  on  Waters 
middle  thread  of  the  stream.  (1900)  ;  Farnham  on  Waters   (1904), 

6.  An    island    newly    rising   in   the  3  vols. 

sea     or     one     hitherto     undiscovered,  7.  The    law    cares    not    for    triflea. 

would  belong  to  the  nation  first  dis-      Broom's  Legal  Maxims,  •134. 


Chap.  XVI.]  Of  Titli.  by  Occupancy.        ;  259 

dry,  the  owner  who  loses  his  ground  thus  imperceptibly  has 
no  remedy;  but  if  the  course  of  the  river  be  changed  by  a 
sudden  and  violent  flood,  or  other  hasty  means,  and  thereby 
a  man  loses  his  ground,  it  is  said  that  he  shall  have  what 
the  river  has  left  in  any  other  place  as  a  recompense  for 
this  sudden  loss. 


260  Of  Title  by  PKEScaiPTioif.  [Book  II, 


CHAPTER  XVII. 

III.     OF  TITLE  BY  PRESCRIPTION". 

A  third  method  of  acquiring  real  property  by  purchase 
is  that  by  prescription  as  wlien  a  man  can  show  no  other 
title  to  what  he  claims,  than  that  he,  and  those  under  whom 
he  claims,  have  immemorially  used  to  enjoy  it.^  [263] 

First,  the  distinction  between  custom  and  prescription 
is  this:  that  custom  is  properly  a  local  usage,  and  not  an- 
nexed to  a  person,  such  as  a  custom  in  the  manor  of  Dale 
that  lands  shall  descend  to  the  youngest  son;  prescription 
is  merely  a  personal  usage,  as  that  Sempronius  and  his  an- 
cestors, or  those  whose  estate  he  hath,  have  used  time  out 
of  mind  to  have  such  an  advantage  or  privilege. 

All' prescription  must  be  either  in  a  man  and  his  ancestors 
or  in  a  man  and  those  whose  estate  he  hath,  which  last  is 
called  prescribing  in  a  qiw  estate.  [264]  And  formerly  a 
man  might,  by  the  common  law,  have  prescribed  for  a  right 
which  has  been  enjoyed  by  his  ancestors  or  predecessors  at 
any  distance  of  time,  though  his  or  their  enjoyment  of  it 
had  been  suspended  for  an  indefinite  series  of  years.  But 
by  the  statute  of  limitations,  32  Hen.  VIII.  c.  2,  it  is  enacted 
that  no  person  shall  make  any  prescription  by  the  seisin  or 
possession  of  his  ancestor  or  predecessor  unless  such  seisin 
or  possession  hath  been  within  threescore  years  next  before 
such  prescription  made.^ 

Secondly,  as  to  the  several  species  of  things  which  may 
or  may  not  be  prescribed  for,  we  may,  in  the  first  place, 
observe  that  nothing  but  incorporeal  hereditaments  can  be 
claimed  by  prescription,  —  as  a  right  of  way,  a  common, 
&c.,  —  but  that  no  prescription  can  give  a  title  to  lands  and 

1.  •'  The  possession  must  have  been  2.  Twenty  years  is  the  time  usually 

possessio  longa,  continua,  et  pacifica,  required  and  in  some  states  even   a 

nee  sit  legiiim  a  interruptio ;  long  con-  less    period    la    necessary.      Hopkins, 

tinued,  peaceable  and  without  lawful  Real  Prop.;  2  Bouvier  I^aw  Diet.  371, 

interruption."     2  Bouvier  Law  Diet.  See  the  local  statutes. 
371:    Bract.,  52,  222,  226;   Co.   Litt., 
113b. 


CiiAP.  XVII.]       Of  Title  by  Prescription.  261 

other  corporeal  substances  of  which  more  certain  evidence 
may  be  had.^  2.  A  prescription  must  always  be  laid  in  him 
that  is  tenant  of  the  fee.  [265]  A  tenant  for  life,  for  years, 
at  will,  or  a  copyholder  cannot  prescribe,  by  reason  of  the 
imbecility  of  their  estates.  For,  as  prescription  is  usage 
beyond  time  of  memory,  it  is  absurd  that  they  should  pre- 
tend to  prescribe  for  anything  whose  estates  commenced 
within  the  remembrance  of  man.  And  therefore  the  copy- 
holder must  prescribe  under  cover  of  his  lord's  estate,  and 
the  tenant  for  life  under  cover  of  the  tenant  in  fee-simple. 
3.  A  prescription  cannot  be  for  a  thing  which  cannot  be 
raised  by  grant.  For  the  law  allows  prescription  only  in 
supply  of  the  loss  of  a  grant,  and  therefore  every  prescrip- 
tion presupposes  a  grant  to  have  existed.  Thus  the  lord 
of  a  manor  cannot  prescribe  to  raise  a  tax  or  toll  upon 
strangers,  for,  as  such  claim  could  never  have  been  good 
by  any  grant,  it  shall  not  be  good  by  prescription.  4.  A 
fourth  rule  is,  that  what  is  to  arise  by  matter  of  record 
cannot  be  prescribed  for,  but  must  be  claimed  by  grant, 
entered  on  record;  such  as,  for  instance,  the  royal  franchises 
of  deodands,  felons'  goods,  and  the  like.  5.  Among  things 
incorporeal  which  may  be  claimed  by  prescription,  a  dis- 
tinction must  be  made  with  regard  to  the  manner  of  pre- 
scribing: that  is,  whether  a  man  shall  prescribe  in  a  que 
estate,  or  in  himself  and  his  ancestors.  For  if  a  man  pre- 
scribes in  a  que  estate  (that  is,  in  himself  and  those  whose 
estate  he  holds),  nothing  is  claimable  by  this  prescription 
but  such  things  as  are  incident,  appendant,  or  appurtenant 
to  lands.  For  it  w^ould  be  absurd  to  claim  anything  as  the 
consequence  or  appendix  of  an  estate,  with  which  the  thing 
claimed  has  no  connection;  but  if  he  prescribes  in  himself 
and  his  ancestors,  he  may  prescribe  for  anything  whatso- 
ever that  lies  in  grant,  not  only  things  that  are  appurtenant, 
but  also  such  as  may  be  in  gross.  [266]     Thus,  a  man  may 

3.  By  analogj'  to  prescription  stat-  ally  fixed  at  twenty  years,  though  a 

utes    of    limitation   exist   in   all   the  less    period    suffices    in    some    states, 

states,    by    which    title    to    corporeal  See,    generally.    Wood   on   Limitation 

hereditaments,  as  well  as  incorporeal,  of  Actions   (1907)  ;  Buswell  on  Limi- 

may  be  acquired  by  adverse  possession  tation    of   Actions    (1889);    3    Wash, 

for  the  statutory  period  which  is  usu-  Real  Prop.    (6th  Ed.)    (1902). 


262  Of  Title  by  Peescription.  [Book  II. 

prescribe  in  a  que  estate  for  a  common  appurtenant  to  a 
manor,  but,  if  he  would  prescribe  for  a  common  in  gross, 
he  must  prescribe  in  himself  and  his  ancestors.  6.  Lastly, 
we  may  observe  that  estates  gained  by  prescription  are  not, 
of  course,  descendible  to  the  heirs  general,  like  other  pur- 
chased estates,  but  are  an  exception  to  the  rule.  For,  prop- 
erly speaking,  the  prescription  is  rather  to  be  considered  as 
an  evidence  of  a  former  acquisition  than  as  an  acquisition  de 
novo:  and  therefore,  if  a  man  prescribes  for  a  right  of  way 
in  himself  and  his  ancestors,  it  will  descend  only  to  the 
blood  of  that  line  of  ancestors  in  whom  he  so  prescribes, 
the  prescription  in  this  case  being  indeed  a  species  of 
descent.  But  if  he  prescribes  for  it  in  a  qu&  estate,  it  will 
follow  the  nature  of  that  estate  in  which  the  prescription 
is  laid,  and  be  inheritable  in  the  same  manner,  whether  that 
were  acquired  by  descent  or  purchase;  for  every  accessory 
foUoweth  the  nature  of  its  principal. 


Chap.  XVIII.]      Of  Title  by  Fokfeituse.  263 


CHAPTER  XVIII. 

IV.      OF  TITLE  BY  FORFEITURE. 

Forfeiture  is  a  punishment  annexed  loy  law  to  some 
illegal  act  or  negligence,  in  the  owner  of  lands,  tenements, 
or  hereditaments,  whereby  he  loses  all  his  interest  therein, 
and  they  go  to  the  party  injured,  as  a  recompense  for  the 
wrong  which  either  he  alone,  or  the  public  together  with 
himself,    hath  sustained.  [267] 

Lands,  tenements,  and  hereditaments  may  be  forfeited 
in  various  degrees  and  by  various  means:  1.  By  crimes 
and  misdemeanors.  2.  By  alienation  contrary  to  law.  3. 
By  non-representation  to  a  benefice,  when  the  forfeiture  is 
denominated  a  lapse.  4.  By  simony.  5.  By  non-perform- 
ance of  condition.  6.  By  waste.  7.  By  breach  of  copyhold 
customs.     8.  By  bankruptcy. 

I.  The  foundation  and  justice  of  forfeitures  for  crimes  and  misdemean- 
ors, and  the  several  degrees  of  those  forfeitures  proportioned  to  the 
several  offences,  will  be  more  properly  considered  in  the  fourth  book  of 
these  Commentaries.!  At  present  I  shall  only  observe  that  the  offences 
which  induce  a  forfeiture  of  lands  and  tenements  to  the  crown  are  prin- 
■cipally  the  following  six:  1.  Treason.  2.  Felony.  8.  Misprison  of  trea- 
son. 4.  Praemunire.  5.  Drawing  a  weapon  on  a  judge,  or  striking  any 
one  in  the  presence  of  the  king's  principal  courts  of  justice.  [268]  6. 
Popish  recusancy,  or  non-observance  of  certain  laws  enacted  in  restraint 
of  papists. 

II.  Lands  and  tenements  may  be  forfeited  by  alienation, 
or  conveying  them  to  another  contrary  to  law.  This  is 
either  alienation  in  mortmain,  alienation  to  an  alien,  or 
alienation  by  particular  tenants;  in  the  two  former  of  which 
cases  the  forefeiture  arises  from  the  incapacity  of  the 
alienee  to  take,  in  the  latter  from  the  incapacity  of  the 
alienor  to  grant. 

1.  Alienation  in  mortmain,  in  mortim  manu,  is  an  aliena- 

1.  See  U.  S.  Const.,  art.  3,  sec.  3,  tions  by  which  such  forfeitures  have 
cl.  2;  Cooley's  Const.  Lim.  (7th  Ed.),  been  abolished  or  greatly  mitigated. 
3G8,   tmd   the  several   state  constitu-      See,  also,  33  &  34  Vict.,  ch.  23. 


204  Of  Title  by  Forfeiture.  [Book  IT. 

tion  of  lands  or  tenements  to  any  corporation,  sole  or  aggre- 
gate, ecclesiastical  or  temporal.^  But  these  purchases  hav- 
ing been  chiefly  made  by  religious  houses,  in  consequence 
whereof  the  lands  became  perpetually  inherent  in  one  dead 
hand,  this  hath  occasioned  the  general  appellation  of  mort- 
main to  be  applied  to  such  alienations,  and  the  religious 
houses  themselves  to  be  principally  considered  in  forming 
the  statutes  of  mortmain. 

By  the  common  law  any  man  might  dispose  of  his  lands 
to  any  other  private  man  at  his  own  discretion,  especially 
when  the  feodal  restraints  of  alienation  were  worn  away. 
Yet  in  consequence  of  these  it  was  always,  and  is  stilly 
necessary  for  corporations  to  have  a  license  in  mortmain 
from  the  crown,  to  enable  them  to  purchase  lands;  for  as 
the  king  is  the  ultimate  lord  of  every  fee,  he  ought  not, 
unless  by  his  own  consent,  to  lose  his  privilege  of  escheats 
and  other  feodal  profits,  by  the  vesting  of  lands  in  tenants 
that  can  never  be  attainted  or  die.  [269]  And  such  licenses 
of  mortmain  seem  to  have  been  necessary  among  the  Saxons 
above  sixty  years  before  the  Norman  Conquest.  But  be- 
sides this  general  license  from  the  king,  as  lord  paramount 
of  the  kingdom,  it  was  also  requisite,  whenever  there  w^as 
a  mesne  or  intermediate  lord  between  the  king  and  the 
alienor,  to  obtain  his  license  also  (upon  the  same  feodal 
principles)  for  the  alienation  of  the  specific  land.  And  if 
no  such  license  was  obtained,  the  king  or  other  lord  might 
respectively  enter  on  the  land  so  aliened  in  mortmain  as  a 
forfeiture. 

Yet  such  were  the  influence  and  ingenuity  of  the  clergy  that  (notwith- 
standing this  fundamental  principle)  we  find  that  the  largest  and  most 
considerable  dotations  of  religious  houses  happened  within  less  than 
two  centuries  after  the  Conquest.  And  (when  a  license  could  not  be  ob- 
tained) their  contrivance  seems  to  have  been  this:  that,  as  the  forfeiture 
for  such  alienations  accrued  in  the  first  place  to  the  immediate  lord  of 
the  fee,  the  tenant  who  meant  to  alienate  first  conveyed  his  lands  to 
the  religious  house,  and  instantly  took  them  back  again  to  hold  as  tenant 
to  the  monastery — which  kind  of  instantaneous  seisin  was  probably  held 
not  to  occasion  any  forfeiture, — and  then  by  pretext  of  some  other  for- 

2.  Not  adopted  in  the  United  States  veyances  to  corporations  without  li- 
except  in  Pennsylvania  as  to  dedica-  cense.  See  Hopkins,  Real  Prop.,  389. 
tions   to  superstitious   uses   and  con- 


Chap.  XVIIL]      Of  Title  by  Forfeiture.  265 

feiture,  surrender,  or  escheat,  the  society  entered  into  those  lands  la 
right  of  such  their  newly  acquired  signiory,  as  immediate  lords  of  the 
fee.  Bnt  when  these  dotations  began  to  grow  numerous,  it  was  ob- 
served that  the  feodal  services  ordained  for  the  defence  of  the  kingdom 
were  every  day  visibly  withdrawn;  that  the  circulation  of  landed  property 
from  man  to  man  began  to  stagnate;  and  that  the  lords  were  curtailed 
of  the  fruits  of  their  signiorles,  their  escheats,  wardships,  reliefs,  and 
the  like;  and  therefore,  in  order  to  prevent  this,  it  was  ordered  by  the 
second  of  King  Henry  III.'s  Great  Charter,  and  afterwards  by  that 
printed  in  our  common  statute  book,  that  all  such  attempts  should  be 
void,  and  the  land  forfeited  to  the  lord  of  the  fee.  [270] 

But,  as  this  prohibition  extended  only  to  religious  houses,  bishops  and 
other  sole  corporations  were  not  included  therein;  and  the  aggregate 
•ecclesiastical  bodies, — who.  Sir  Edward  Coke  observes,  in  this  were  to 
be  commended,  that  they  ever  had  of  their  counsel  the  best  learned  men 
that  they  could  get, — found  many  means  to  creep  out  of  this  statute, 
by  buying  in  lands  that  were  bona  fide  holden  of  themselves  as  lords  of 
the  fee,  and  thereby  evading  the  forfeiture;  or  by  taking  long  leases  for 
years,  which  first  introduced  those  extensive  terms:  for  a  thousand  or 
more  years,  which  are  now  so  frequent  in  conveyances.  This  produced 
the  statute  de  religiosis,  7  Edw.  I.,  which  provided  that  no  person,  religious 
or  other  whatsoever,  should  buy,  or  sell,  or  receive  under  pretence  of  a 
gift,  or  term  of  years,  or  any  other  title  whatsoever,  nor  should  by  any 
-art  or  ingenuity  appropriate  to  himself  any  lands  or  tenements  in  mort- 
main, upon  pain  that  the  immediate  lord  of  the  fee,  or,  on  his  default 
for  one  year,  the  lords  paramount,  and,  in  default  of  all  of  them,  the 
Icing,  might  enter  thereon  as  forfeiture. 

This  seemed  to  be  a  sufficient  security  against  all  alienations  in  mort- 
main; but  as  these  statutes  extended  only  to  gifts  and  conveyances  be- 
tween the  parties,  the  religious  houses  now  began  to  set  up  a  fictitious 
title  to  the  land,  which  it  was  intended  they  should  have,  and  to  bring 
an  action  to  recover  it  against  the  tenant;  who,  by  fraud  and  collusion, 
made  no  defence,  and  thereby  judgment  was  given  for  the  religious  house, 
which  then  recovered  the  land  by  sentence  of  law  upon  a  supposed  prior 
title.  [271]  And  thus  they  had  the  honor  of  inventing  those  fictitious 
adjudications  of  right,  which  are  since  become  the  great  assurance  of  the 
kingdom,  under  the  name  of  common  recoveries.  But  upon  this  the 
statute  of  Westminster  the  second,  13  Edw.  I.  c.  32,  enacted,  that  in  such 
cases  a  jury  shall  t^y  the  true  right  of  the  demandants  or  plaintiffs  to 
the  land,  and  if  the  religious  house  or  corporation  be  found  to  have  it, 
they  shall  still  recover  seisin;  otherwise  it  shall  be  forfeited  to  the  im- 
mediate lord  of  the  fee,  or  else  to  the  next  lord,  and  finally  to  the  king, 
upon  the  immediate  or  other  lord's  default.  So  careful,  indeed,  was  this 
provident  prince  to  prevent  any  future  evasions,  that  when  the  statute 
of  quia  emptores,3  18  Edw.   I.,  abolished  all  subinfeudations,  and  gave 

3.  Because  purchasers. 


2G6  Of  Title  by  Forfeiture.  [Book  II. 

liberty  for  all  men  to  alienate  tlieir  lands  to  be  holden  of  their  next  Im- 
mediate lord,  a  proviso  was  inserted  that  this  should  not  extend  to  au- 
thorize any  kind  of  alienation  in  mortmain.  And  when  afterwards  the 
method  of  obtaining  the  king's  license  by  writ  of  ad  quod  damnum  *  was 
marked  out  by  the  statute  27  Edw.  I.  st,  2,  it  was  further  provided  by 
statute  13  Edw.  I.  st.  3,  that  no  such  license  should  be  effectual  without 
the  consent  of  the  mesne  or  intermediate  lords. 

Yet  still  it  was  found  difficult  to  set  bounds  to  ecclesiastical  ingenuity; 
for  when  they  were  driven  out  of  all  their  former  holds,  they  devised  a  new 
method  of  conveyance,  by  which  the  lands  were  granted,  not  to  them- 
selves directly,  but  to  nominal  feoffees  to  the  use  of  the  religions  houses; 
thus  distinguisliing  between  the  possession  and  the  use,  and  receiving 
the  actual  profits,  while  the  seisin  of  the  land  remained  in  the  nominal 
feoffee,  who  was  held  by  the  courts  of  equity, — then  under  the  direction 
of  the  clergy, —  to  be  bound  in  conscience  to  account  to  his  cestuy  que  u,se 
for  the  rents  and  emoluments  of  the  estate.  [272]  [See  post,  p.  *328.J 
And  it  is  to  these  inventions  that  our  practisers  are  indebted  for  the 
introduction  of  uses  and  trusts,  the  foundation  of  modern  conveyancing. 
But,  unfortunately  for  the  inventors  themselves,  they  did  not  long  en- 
joy the  advantage  of  their  new  device;  for  the  statute  15  Ric.  II.  c.  5, 
enacts  that  the  lands  which  had  been  so  purchased  to  uses  should  be 
amortized  by  license  from  the  crown,  or  else  be  sold  to  private  persons; 
and  that,  for  the  future,  uses  shall  be  subject  to  the  statutes  of  mortmain, 
and  forfeitable  like  the  lands  themselves.  And  whereas  the  statutes  had 
been  eluded  by  purchasing  large  tracts  of  land,  adjoining  to  churches, 
and  consecrating  them  by  the  name  of  churchyards, — such  subtile  im- 
agination is  also  declared  to  be  within  the  compass  of  the  statutes  of 
mortmain.  And  civil  or  lay  corporations,  as  well  as  ecclesiastical,  are 
also  declared  to  be  within  the  mischief,  and  of  course  within  the  remedy, 
provided  by  those  salutary  laws.  And,  lastly,  as  during  the  times  of 
popery  lands  were  frequently  given  to  superstitious  uses,  though  not  to 
any  corporate  bodies,  or  were  made  liable  in  the  hands  of  heirs  and  de- 
visees to  the  charge  of  obits,  chaunteries,  and  the  like,  which  were 
equally  pernicious  in  a  well-governed  state  as  actual  alienations^  in 
mortmain;  therefore,  at  the  dawn  of  the  Reformation,  the  statute  2S 
Hen.  VIII,  c.  10,  declares  that  all  future  grants  of  lands  for  any  of  the 
purposes  aforesaid,  if  granted  for  any  longer  term  than  twenty  years, 
shall  be  void. 

But  during  all  this  time  it  was  in  the  power  of  tlie  crown,  by  granting 
a  license  of  mortmain,  to  remit  the  forfeiture,  so  far  as  related  to  its 
own  rights,  and  to  enable  any  spiritual  or  other  corporation  to  purchase 
and  hold  any  lands  or  tenements  in  perpetuity;  which  prerogative  is 
declared  and  confirmed  by  the  statute  18  Edw.  III.  st.  3,  c  3.  But  as 
doubts  were  conceived,  at  the  time  of  the  Revolution,  how  far  such  li- 
cense was  valid,   since  the  kings  had  no   power  to   dispense   with   the 

4.  To  what  damage. 


Chap.  XVIIL]      Of  Title  by  Forfeiture.  267 

statutes  of  mortmain  by  a  clause  of  non  obstante,  which  was  the  usual 
course,  though  it  seems  to  have  been  unnecessary;  an>d  as,  by  the 
gradual  declension  of  mesne  signiories  through  the  long  operation  of  the 
statute  of  quia  emptores,  the  rights  of  intermediate  lords  were  reduced 
to  a  very  small  compass;  it  was  therefore  provided  by  the  statute  7  &  8 
W.  III.  c,  37,  that  the  crown  for  the  future,  at  its  own  discretion,  may 
grant  licenses  to  aliene  or  take  in  mortmain,  of  whomsoever  the  tene- 
ments may  be  holden.  After  the  dissolution  of  monasteries  under  Henry 
VIII.,  the  statutes  of  mortmain  were  suspended  for  twenty  years  by 
the  statute  1  &  2  P.  &  M.  c.  8,  and  during  that  time  any  lands  or  tene- 
ments were  allowed  to  be  granted  to  any  spiritual  corporation  without 
any  license  whatsoever.  And  long  afterwards,  for  a  much  better  pur- 
pose, the  augmentation  of  poor  living,  it  was  enacted  by  the  statute  17 
Car.  II.  c.  3,  that  appropriators  may  annex  the  great  tithes  to  the  vicar- 
ages, and  that  all  benefices  under  lOOl.  per  annum  may  be  augmented  by 
the  purchase  of  lands,  without  license  of  mortmain  in  either  case;  and 
the  like  provision  hath  been  since  made  in  favor  of  the  governors  of  Queen 
Anne's  bounty.  It  hath  also  been  held  that  the  statute  23  Hen.  VIII., 
before  mentioned,  did  not  extend  to  anything  but  superstitious  uses; 
and  that  therefore  a  man  may  give  lands  for  the  maintenance  of  a  school, 
an  hospital,  or  any  other  charitable  uses.  But  as  it  was  apprehended 
from  recent  experience  that  persons  on  their  death-beds  might  make 
large  and  improvident  dispositions  even  for  these  good  purposes,  and 
defeat  the  political  ends  of  the  statutes  of  mortmain,  it  is  therefore 
enacted  by  the  statute  9  Geo.  II.  c.  36,  that  no  lands  or  tenements,  or 
money  to  be  laid  out  thereon,  shall  be  given  for,  or  charged  with,  any 
charitable  uses  whatsoever,  unless  by  deed  indented,  executed  in  the 
presence  of  two  witnesses  twelve  calendar  months  before  the  death  of 
the  donor,  and  enrolled  in  the  Court  of  Chancery  within  six  months  after 
its  execution, — except  stocks  in  the  public  funds,  which  may  be  transferred 
within  six  months  previous  to  the  donor's  death, — and  unless  such  gift 
be  made  to  take  effect  immediately,  and  be  without  power  of  revocation; 
and  that  all  other  gifts  shall  be  void.  [274]  The  two  universities  [of 
Oxford  and  Cambridge],  their  colleges,  and  the  scholars  upon  the  foun- 
dation of  the  colleges  of  Eton,  Winchester,  and  Westminster,  are  ex- 
cepted out  of  this  act. 

2.  Secondly,  alienation  to  an  alien  is  also  a  cause  of  for- 
feiture to  the  crown  of  the  land  so  alienated ;  not  only  on 
account  of  his  incapacity  to  hold  them,  which  occasions 
him  to  be  passed  by  in  descents  of  land,  but  likewise  on 
account  of  his  presumption  in  attempting,  by  an  aipt  of  his 
own,  to  acquire  any  real  property,  as  was  observed  in  the 
preceding  book.^ 

5.  "  In  many  states  the  disabilities      in   others   they   are   removed  only   as 
of  alienage  have  been  recovered,  while      to    resident    aliens."      Hopkins,    Real 


2G3  Of  Title  by  Forfeiture.  [Book  II. 

3.  Lastly,  alienations  by  particular  tenants,  when  they 
are  greater  than  the  law  entitles  them  to  make,  and  devest 
the  remainder  or  reversion,  are  also  forfeitures  to  him 
whose  right  is  attacked  thereby.'' 

As,  if  tenant  for  his  own  life  alienes  by  feoffment  or  fine  for  the  life 
of  another,  or  in  tail  or  in  fee,  these  being  estates  which  either  must  or 
may  last  longer  than  his  owq,  the  creating  them  is  not  only  beyond  his 
power  and  inconsistent  with  the  nature  of  his  interest,  but  is  also  a  for- 
feiture of  his  own  particular  estate  to  him  in  remainder  or  reversion. 
For  which  there  seem  to  be  two  reasons.  First,  because  such  aliena- 
tion amounts  to  a  renunciation  of  the  feodal  connection  and  dependence. 
The  other  reason  is,  because  the  particular  tenant,  by  granting  a  larger 
estate  than  his  own,  has  by  his  own  act  determined  and  put  an  entire 
end  to  his  own  original  interest,  and  on  such  determination  the  next 
taker  is  entitled  to  enter  regularly,  as  in  his  remainder  or  reversion. 
[275]  The  same  law  which  is  thus  laid  down  with  regard  to  tenants 
for  life,  holds  also  with  respect  to  all  tenants  of  the  mere  freehold  or  of 
chattel  interests;  but  if  tenant  in  tail  alienes  in  fee,  this  is  no  immediate 
forftiture  to  the  remainder-man,  but  a  mere  discontinuance,  as  it  is  called, 
of  the  estate-tail,  which  the  issue  may  afterwards  avoid  by  due  course 
of  law.  But  in  case  of  such  forfeitures  by  particular  tenants,  all  legal 
estates  by  them  before  created,  as  if  tenant  for  twenty  years  grants  a 
lease  for  fifteen,  and  all  charges  by  him  lawfully  made  on  the  lands, 
shall  be  good  and  available  in  law.  Equivalent,  both  in  its  nature  and 
its  consequences,  to  an  illegal  alienation  by  the  particular  tenant,  is  the 
civil  crime  of  disclaimer;  as  where  a  tenant,  who  holds  of  any  lord, 
neglects  to  render  him  the  due  services,  and,  upon  an  action  brought 
to  recover  them,  disclaims  to  hold  of  his  lord,— which  disclaimer  of 
tenure  in  any  court  of  record  is  a  forfeiture  of  the  lands  to  the  lord, 
upon  reasons  most  apparently  feodal.  And  so  likewise,  if  in  any  court 
of  record  the  particular  tenant  does  any  act  which  amounts  to  a  virtual 
disclamer:  if  he  claims  any  greater  estate  than  was  granted  him  at 
the  first  infeodation,  or  takes  upon  himself  those  rights  which  belong 
only  to  tenant  of  a  superior  class;  if  he  affirms  the  reversion  to  be  in  a 
stranger,  by  accepting  his  fine,  attorning  as  his  tenant,  collusive  plead- 
ing, and  the  like, — such  behavior  amounts  to  a  forfeiture  of  his  particular 
estate.  [276] 

Est.,  388.  Such  being  the  case  the  6.  By  statute  in  this  country  it  ia 
doctrine  of  the  text  is  not  generally  provided  in  many  states  tliat  any  con- 
the  law  of  this  country.  Any  state  veyance  by  a  tenant  shall  convey  only 
laws  are,  of  course,  subject  to  modi-  such  interest  as  he  may  lawfully 
fication  or  repeal  by  treaties  made  convey  and  shall  not  work  a  forfeit- 
by  the  United  States  with  foreign  na-  ure. 
tiotis.  Hopkins,  Real  Est.,  388;  1 
Stim.  Am.  St.  Law,  §   6013. 


Chap.  XVIII.]      Of  Title  by  Forfeiture. 


269 


III.  Lapse  is  a  species  of  forfeitare,  whereby  the  right  of  presentation 
to  a  church  accrues  to  the  ordinary  by  neglect  of  the  patron  to  present, 
to  the  metropolitan  by  neglect  of  the^ ordinary,  and  to  the  king  by  neglect 
of  the  metropolitan. 

IV.  By  simony,  the  right  of  presentation  to  a  living  is  forfeited,  and 
vested  pro  hac  vice  in  the  crown.  [278]  Simony  is  the  corrupt  presenta- 
tion of  any  one  to  an  ecclesiastical  benefice  for  money,  gift,  or  reward. 

V.  The  next  kind  of  forfeitures  are  those  by  breach  or 
non-performance  of  a  condition  annexed  to  the  estate,  either 
expressly  by  deed  at  its  original  creation,  or  impliedly  by 
law  from  a  principle  of  natural  reason.  [284]  Both  which 
we  considered  at  large  in  a  former  chapter. 

VI.  Waste,  vastum,  is  a  spoil  or  destruction  in  houses, 
gardens,  trees,  or  other  corporeal  hereditaments,  to  the 
disherison  of  him  that  hath  the  remainder  or  reversion  in 
fee-simple  or  fee-tail.^ 


7.  See  ante,  •122.  note.  See,  also. 
Waste  defined  substantially  as  in  the 
text  in  McCulloch  v.  Irvine,  13  Penn. 
St.  440;  Ewell  on  Fixt.  (2d  Ed.),  *S1, 
note. 

Cases  respecting  fixtures,  which  is 
relatively  a  modern  word,  are  to  be 
found  in  the  old  boolcs,  as  a  rule,  un- 
der the  head  "Waste."  The  term 
"  fixtures "  has  been  used  in  many 
diflPering  and  often  contradictory  sig- 
nifications. See  Ewell  on  Fixtures  (2d 
Ed.),  1-7.  We  use  the  term  "to  desig- 
nate things  originally  chattel  in  their 
nature,  which  are  so  fixed  or  annexed 
either  actually  or  constructively  to 
the  realty,  as  to  have  lost  either 
Avholly  or  to  some  extent  and  for 
pome  purposes  while  so  annexed,  their 
character  as  movable  chaatels."  Id.,  6. 

The  general  rule  of  the  common  law 
was  that  whatever  is  fixed  to  the 
freehold  becomes  a  part  of  the  free- 
hold and  subject  to  the  same  rules  of 
law  as  the  soil  itself;  and  it  is  to  the 
relaxation  of  this  rule  to  meet  mod- 
ern conditions  that  the  law  of  fixtures 


owes  its  existence.  It  will  be  imprac- 
ticable here  to  do  more  than  show  the 
most  general  modifications  and  limi- 
tations of  this  old  common  law  rule: 

(1)  In  the  case  of  annexations  to 
the  soil  made  by  strangers,  i.  e.,  per- 
sons holding  no  contractual  relations 
with  the  owner  of  the  soil,  the  old 
rule  is  still  applied  with  considerable 
right.  Ewell  on  Fixt.,  54,  55  and 
notes,  where  the  cases  are  exhaustively 
collected  up  to  February,  1905. 

(2)  As  between  landlord  and  ten- 
ant, especially  in  the  case  of  trade 
fixtures,  the  rule  has  been  so  relaxed 
as  to  enable  the  tenant  to  remove 
during  the  term  almost  any  and  every 
annexation  not  intended  as  a  perma- 
nent improvement  and  that  can  be 
removed  without  permanent  injury  to 
the  reversion.  Id.,  ch.  4.  The  cases 
are  very  numerous  on  this  proposition 
and  will  be  found  fully  collected  in 
the  notes. 

(3)  As  between  tenants  for  life  or 
in  tail  and  their  personal  representa- 
tives and  the  remainderman  or  rever- 


270  Of  Title  by  Forfeiture.        '^       [Book  II. 

Waste  is  either  voluntary,  which  is  a  crime  of  commis- 
sion, as  by  pulling  down  a  hquse,  or  it  is  permissive,  which 
is  a  matter  of  omission  only,  as  by  suffering  it  to  fall  for 
want  of  necessary  reparations.  Whatever  does  a  lasting 
damage  to  the  freehold  or  inheritance  is  waste.  There- 
fore, removing  wainscot,  floors,  or  other  things  once  fixed 
to  the  freehold  of  a  house  is  waste.  If  a  house  be  destroyed 
by  tempest,  lightning,  or  the  like,  which  is  the  act  of  Provi- 
dence, it  is  no  waste;  but  otherwise,  if  the  house  be  burnt 
by  the  carelessness  or  negligence  of  the  lessee,  though  now 
by  the  statute  6  Anne,  c.  31,  no  action  will  lie  against  a 
tenant  for  an  accident  of  this  kind.  Waste  may  also  be 
committed  in  ponds,  dove-houses,  warrens,  and  the  like,  by 
so  reducing  the  number  of  the  creatures  therein  that  there 
will  not  be  sufficient  for  the  reversioner  when  he  comes  to 
the  inheritance.  Timber  also  is  part  of  the  inheritance. 
Such  are  oak,  ash,  and  elm  in  all  places;  and  in  some  par- 
ticular countries,  by  local  custom,  where  other  trees  are 
generally  used  for  building,  they  are  for  that  reason  con- 
sidered as  timber,  and  to  cut  down  such  trees,  or  top 
them,  or  do  any  other  act  whereby  the  timber  may  decay, 
is  waste.  But  underwood  the  tenant  may  cut  down  at 
any  seasonable  time  that  he  pleases,  and  may  take  suf- 
ficient estovers  of  common  right  for  house-bote  and  cart- 
bote,  unless  restrained  (which  is  usual)  by  particular  cov- 
enants or  exceptions.  [282]  The  conversion  of  land 
from  one  species  to  another  is  waste.  To  convert  wood, 
meadow,  or  pasture  into  arable,  to  turn  arable,  meadow,  or 
pasture  into  woodland,  or  to  turn  arable  or  woodland  into 
meadow  or  pasture,  are  all  of  them  waste.    For,  as  Sir 

sioners,  the  cases  are  relatively  few  applied  with  rigor  as  between  exec- 
in  number  and  the  right  of  removal  utor  and  heir  and  uncomplicated  cases 
is  not  so  liberally  extended  as  in  the  of  vendor  and  vendee,  etc.  Id.,  chs. 
case  of  landlord  and  tenant;  still  it  7,9.  The  eases  of  emblement  on  grow- 
ls more  liberal  here  than  in  the  rela-  ing  crops,  game,  fish,  etc.,  etc.,  are 
tion  of  executor  and  heir  and  vendor  elsewhere  considered  in  this  volume, 
or  mortgagor  and  vendee  or  mort-  To  the  best  of  our  ability  every  de- 
gagee,  where  it  is  (in  the  absence  of  cided  case  upon  the  general  subject 
any  reservation  in  the  conveyance)  Fixtures,  up  to  the  year  1905,  has  been 
applied  with  rigor.  Id.,  chs.  7,  9.  cited  in  our  work  on  the  subject,  to 
(4)   As  already  stated  the  rule  is  which  we  must  refer  for  details. 


Chap.  XVIIL]      Of  Title  by  Forfeiture.  271 

Edward  Coke  observes,  it  not  only  changes  the  course  of 
husbandry,  but  the  evidence  of  the  estate,  when  such  a  close, 
which  is  conveyed  and  described  as  pasture,  is  found  to  be 
arable,  and  e  converso.  And  the  same  rule  is  observed,  for 
the  same  reason,  with  regard  to  converting  one  species  of 
edifice  into  another,  even  though  it  is  improved  in  its  value. 
To  open  the  land  to  search  for  mines  of  metal,  coal,  &c.,  is 
waste,  for  that  is  a  detriment  to  the  inheritance;  but  if  the 
pits  or  mines  were  open  before,  it  is  no  waste  for  the  tenant 
to  continue  digging  them  for  his  own  use;  for  it  is  now 
become  the  mere  annual  profit  of  the  land.  These  three 
are  the  general  heads  of  waste,  viz.  in  houses,  in  timber,  and 
in  land.  Though,  as  was  before  said,  whatever  else  tends 
to  the  destruction,  or  depreciating  the  value  of  the  inherit- 
ance, is  considered  by  the  law  as  waste.  . 

Next,  who  are  liable  to  be  punshed  for  committing  waste. 
And  by  the  feodal  law,  feuds  being  originally  granted  for 
life  only,  we  find  that  the  rule  was  general  for  all  vassals 
or  feudatories:  ^^ si  vasaUtis  feudum  dissipaverit,  aut  insigni 
detrimerite  deterius  fecerit,  privahltur."^  But  in  our  an- 
cient common  law  the  rule  was  by  no  means  so  large,  for  not 
only  he  that  was  seized  of  an  estate  of  inheritance  might  do 
as  he  pleased  with  it,  but  also  waste  was  not  punishable  in 
any  tenant  save  only  in  three  persons, —  guardian  in  chiv- 
alry, tenant  in  dower,  and  tenant  by  the  curtesy,  and  not 
in  tenant  for  life  or  years.  [283]  And  the  reason  of  the  di- 
versity was,  that  the  estate  of  the  three  former  was  cre- 
ated by  the  act  of  the  law  itself,  which  therefore  gave  a 
remedy  against  them;  but  tenant  for  life,  or  for  years, 
came  in  by  the  demise  and  lease  of  the  owner  of  the  fee,  and 
therefore  he  might  have  provided  against  the  committing 
of  waste  by  his  lessee,  and  if  he  did  not  it  was  his  own 
default.  But,  in  favor  of  the  owners  of  the  inheritance, 
the  statutes  of  Marlbridge,  52  Hen.  III.  c.  23,  and  of 
Gloucester,  6  Edw.  I.  c.  5,  provided  that  the  writ  of  waste 
shall  not  only  lie  against  tenants  by  the  law  of  England  (or 
curtesy),  and  those  in  dower,  but  against  any  farmer  or  other 

8.  If  a  vassal  shall  have  wasted  the      marked  damage,  he  shall  be  deprived 
fee,   or   diminished   its   value  by   any      of  it. 


272  Of  Title  by  Forfeitdre.  [Book  IT. 

that  holds  in  any  manner  for  life  or  years.  So  that,  for 
above  five  hundred  years  past,  all  tenants  merely  for  life 
or  for  any  less  estate,  have  been  punishable  or  liable  to  be 
impeached  for  waste,  both  voluntary  and  permissive,  unless 
their  leases  be  made,  as  sometimes  they  are,  without  im- 
peachment of  waste,  absque  impetitione  vasti;  that  is,  with 
a  provision  or  protection  that  no  man  shall  iniprtrrc,  or  sue 
him  for  waste  committed.  But  tenant  in  tail  after  pos-- 
sibility  of  issue  extinct  is  not  impeachable  for  waste,  be- 
cause his  estate  was  at  its  creation  an  estate  of  inheritance, 
and  so  not  within  the  statutes.  Neither  does  an  action  of 
waste  lie  for  the  debtor  against  tenant  by  statute,  recogni- 
zance, or  elegit,  because  against  them  the  debtor  may  set  off 
the  damages  in  account;  but  it  seems  reasonable  that  it 
should  lie  for  the  reversioner,  expectant  on  the  determination 
of  the  debtor's  own  estate,  or  of  these  estates  derived  from 
the  debtor. 

The  punishment  for  waste  committed  was,  by  common 
law  and  the  statute  of  Marlbridge,  only  single  damages, 
except  in  the  case  of  a  guardian,  who  also  forfeited  his 
wardship  by  the  provisions  of  the  Great  Charter;  but  the 
statute  of  Gloucester  directs  that  the  other  four  species  of 
tenants  shall  lose  and  forfeit  the  place  wherein  the  waste 
is  committed,  and  also  treble  damages  to  him  that  hath  the 
inheritance.  The  expression  of  the  statute  is,  *'  he  shall 
forfeit  the  thing  which  he  hath  wasted,"  and  it  hath  been 
determined  that  under  these  words  the  place  is  also  included. 
And  if  waste  be  done  sparsim,  or  here  and  there,  all  over 
a  wood,  the  whole  wood  shall  be  recovered,  or  if  in  several 
rooms  of  a  house,  the  whole  house  shall  be  forfeited ;  because 
it  is  impracticable  for  the  reversioner  to  enjoy  only  the  iden- 
tical places  Avasted  when  lying  interspersed  with  the  other. 
[284]  But  if  waste  be  done  only  in  one  end  of  a  wood  (or 
perhaps  in  one  room  of  a  house,  if  that  can  be  conveniently 
separated  from  the  rest),  that  part  only  is  the  locus  vastatus, 
or  thing  wasted,  and  that  only  shall  be  forfeited  to  the 
reversioner. 


Chap.  XVIII.]      Of  Title  by  Forfeiture.  273 

VII.  A  seyenth  species  of  forfeiture  is  that  of  copyhold  estates,  by 
breach  of  the  customs  of  the  manor.  Copyhold  estates  are  not  only  liable 
to  the  same  forfeitures  as  those  which  are  held  in  socage,  for  treason, 
felony,  alienation,  and  waste, — whereupon  the  lord  may  seize  them  with- 
out any  presentment  by  the  homage, — but  also  to  peculiar  forfeitures 
annexed  to  this  species  of  tenure,  which  are  incurred  by  the  breach  of 
either  the  general  customs  of  all  copyholds,  or  the  peculiar  local  cus- 
toms of  certain  particular  manors.  • 

VIII.  The  eighth  and  last  method  whereby  lands  and 
tenements  may  become  forfeited  is  that  of  bankruptcy,® 
or  the  act  of  becoming  a  bankrupt;  which  unfortunate  per- 
son may,  from  the  several  descriptions  given  of  him  in  our 
statute  law,  be  thus  defined:  a  trader  who  secretes  himself, 
or  does  certain  other  acts,  tending  to  defraud  his  creditors. 
[285] 

9.  Ste  post,  chapter  31. 

18 


274  Of  Title  by  Alienation.  [Book  II. 


CHAPTER  XIX. 

V.    OF    TITLE    BY    ALIENATION". 

The  most  usual  and  universal  method  of  acquiring  a 
title  to  real  estates  is  that  of  alienation,  conveyance,  or  pur- 
chase in  its  limited  sense;  under  which  may  be  comprised 
any  method  wherein  estates  are  voluntarily  resigned  by 
one  man  and  accepted  by  another,  whether  that  be  effected 
by  sale,  gift,  marriage,  settlement,  devise,  or  other  trans- 
mission of  property  by  the  mutual  consent  of  the  parties. 
[287] 

This  means  of  taking  estates  by  alienation  is  not  of  equal  antiquity  in 
the  law  of  England  with  that  of  taking  them  by  descent.  For  by  the 
feodal  law,  a  pure  and  genuine  feud  could  not  be  transferred  from  one 
feudatory  to  another  without  the  consent  of  the  lord.  Neither  could  the 
feudatory  then  subject  the  land  to  his  debts,  for  if  he  might,  the  feodal 
restraint  of  alienation  would  have  been  easily  frustrated  and  evaded. 
And  as  he  could  not  aliene  it  in  his  lifetime,  so  neither  could  he  by  will 
defeat  the  succession  by  devising  his  feud  to  another  family,  nor  even 
alter  the  course  of  it  by  imposing  particular  limitations,  or  prescribing 
an  unusual  path  of  descent.  Nor,  in  short,  could  he  aliene  the  estate, 
even  with  the  consent  of  the  lord,  unless  he  had  also  obtained  the  con- 
sent of  his  own  next  apparent  or  presumptive  heir.  And,  on  the  other 
hand,  as  the  feodal  obligation  was  looked  upon  to  be  reciprocal,  the 
lord  could  not  aliene  or  transfer  his  signiory  without  the  consent  of 
his  vassal.  [288]  This  consent  of  the  vassal  was  expressed  by  what  was 
called  attorning,  or  professing  to  become  the  tenant  of  the  new  lord, 
which  doctrine  of  attornment  was  afterwards  extended  to  all  lessees  for 
life  or  years.  For  if  one  bought  an  estate  with  any  lease  for  life  or 
years  standing  out  thereon,  and  the  lessee  or  tenant  refused  to  attorn 
to  the  purchaser  and  to  become  his  tenant,  the  grant  or  contract  was 
in  most  cases  void,  or  at  least  incomplete,  which  was  also  an  additional 
clog  upon  alienations. 

But  by  degrees  this  feodal  severity  is  worn  off,  and  experience  hath 
fhown  that  property  best  answers  the  purposes  of  civil  life,  especially 
in  commercial  countries,  when  its  transfer  and  circulation  are  totally 
free  and  unrestrained.  The  road  was  cleared  in  the  first  place  by  a  law 
of  King  Henry  I.,  which  allowed  a  man  to  sell  and  dispose  of  lands 
which  he  himself  had  purchased;  but  he  was  not  allowed  to  sell  the  whole 
of  his  own  acquirements  so  as  totally  to  disinherit  his  children,  any 
more  than  he  was  at  liberty  tD  aliene  his  paternal  estate.  [289]  After- 
wards a  man  seems  to  have  been  at  liberty  to  part  with  all  his  own 
acquisitions,  if  he  had  previously  purchased  to  him  and  his  assigns  by 


Chap.  XIX.]  Of  Title  by  Alienation". 


275 


name;  but  if  his  assigns  were  not  specified  in  the  purchase  deed,  he  wig 
not  empowered  to  aliene,  and  also  he  might  part  with  one-fourth  of  the 
inheritance  of  his  ancestors  without  the  consent  of  his  heir.  By  the 
Great  Charter  of  Henry  III.,  no  subinfeudation  was  permitted  of  part  of 
the  land  unless  sufficient  was  left  to  answer  the  services  due  to  the  su- 
perior lord, — which  sufficiency  was  probably  interpreted  to  be  one-half 
or  moiety  of  the  land. 


But  these  restrictions  were  in  general  removed  by  the 
statute  of  quia  emptores,^  whereby  all  persons,  except  the 
king's  tenants  in  capite,^  were  left  at  liberty  to  aliene  all 
or  any  part  of  their  lands  at  their  own  discretion.  And 
even  these  tenants  in  capite  were  by  the  statute  1  Edw.  III. 
c.  12,  permitted  to  aliene  on  paying  a  fine  to  the  king.  By 
the  temporary  statutes  7  Hen.  VII,  c.  3,  and  3  Hen.  VIII. 
c.  4,  all  persons  attending  the  king  in  his  wars  were  allowed 
to  aliene  their  lands  without  license,  and  were  relieved  from 
other  feodal  burdens.  And  lastly,  these  very  fines  for  aliena- 
tions were,  in  all  cases  of  freehold  tenure,  entirely  abolished 
by  the  statute  12  Car.  II.  c.  24.  As  to  the  power  of  charg- 
ing lands  with  the  debts  of  the  owner,  this  was  introduced 
so  early  as  stat.  Westm.  2,  which  subjected  a  moiety  of  the 
tenant's  lands  to  executions  for  debts  recovered  by  law,^  as 
the  whole  of  them  was  likewise  subjected  to  be  pawned  in  a 
statute  merchant  by  the  statute  de  mercatorihus,^  made 
the  same  year,  and  in  a  statute  staple  by  statute  27  Edw.  III. 
c.  9,  and  in  other  similar  recognizances  by  statute  23  Hen. 
VIII.  c.  6.  And  now  the  whole  of  them  is  not  only  subject 
to  be  paioned  for  the  debts  of  the  owner,  but  likewise  to  be 
absolutely  sold  for  the  benefit  of  trade  and  commerce  by  the 
several  statutes  of  bankruptcy.  [290]  The  restraint  of 
devising  lands  by  will,  except  in  some  places  by  particular 
custom,  lasted  longer,  that  not  being  totally  removed  till 
the  abolition  of  the  military  tenure.  The  doctrine  of  at- 
tornments,^ continued  still  later  than  any  of  the  rest,  and 
became  extremely  troublesome,  though  many  methods  were 
invented  to  evade  them,  till  at  last  they  were  made  no 


1.  Because  purchasers. 

2.  In  chief. 

3.  Considered  later  on. 

4.  Coneerninor  merciiants. 


5.  This  was  the  agreement  of  the 
tenant  to  the  grant  of  the  seignory  or 
of  a  rent,  or  the  agreement  ot  t'.ie 
donee    in   tail   or    tenant    for   life    or 


276  Of  Title  by  Aijenation.  [Book  II. 

longer  necessary  to  complete  the  grant  or  conveyance,  by 
statute  4  &  5  Anne,  c.  16,  nor  shall,  by  statute  11  Geo.  II. 
c.  19,  the  attornment  of  any  tenant  affect  the  possession  of 
any  lands  unless  made  with  consent  of  the  landlord,  or  to  a 
mortgagee  after  the  mortgage  is  forfeited,  or  by  direction  of 
a  court  of  justice. 

I.  Who  may  aliene,  and  to  whom,  or,  in  other  words, 
who  is  capable  of  conveying,  and  who  of  purchasing.  All 
persons  in  possession  are  prima  facie  capable  both  of  con- 
veying and  purchasing,  unless  the  law  has  laid  them  under 
any  particular  disabilities.  But  if  a  man  has  only  in  him 
the  riyht  of  either  possession  or  property,  he  cannot  convey 
it  to  any  other,  lest  pretended  titles  might  be  granted  to 
great  men,^  whereby  justice  might  be  trodden  down  and 
the  weak  oppressed.  Yet  reversions  and  vested  remain- 
ders may  be  granted,  because  the  possession  of  the  particu- 
lar tenant  is  the  possession  of  him  in  reversion  or  remain- 
der; but  contingencies  and  mere  possibilities,  though  they 
may  be  released  or  devised  by  will,  or  may  pass  to  the  heir 
or  executor,  yet  cannot  ( it  hath  been  said )  be  assigned  to  a 
stranger  unless  coupled  Avith  some  present  interest.^ 

Persons  attainted  of  treason,  felony,  and  praemunire  are  incapable 
of  conveying,  from  the  time  of  the  offence  committed,  provided  attainder 
follows,  for  such  conveyance  by  them  may  tend  to  defeat  the  king  of  his 
forfeiture,  or  the  lord  of  his  escheat.  [291]  But  they  may  purchase  for 
the  benefit  of  the  crown  or  the  lord  of  the  fee,  though  they  are  disabled 
to  hold:  the  lands  so  purchased,  if  after  attainder,  being  subject  to  im- 
mediate forfeiture;  if  before,  to  escheat  as  well  as.  forfeiture,  according 
to  the  nature  of  the  crime.  So  also  corporations,  religious  or  others, 
may  purchase  lands;  yet,  unless  they  have  a  license  to  hold  in  mort- 
main, they  cannot  retain  such  purchase,  but  it  shall  be  forfeited  to  the 
lord  of  the  fee.  ' 

Idiots  and  persons  of  nonsane  memory,  infants  and  per- 
sons under  duress,  are  not  totally  disabled  either  to  convey 
or  purchase,  but  sub  modo  only.     For  their  conveyances 

years  to  a  grant  of  a  reversion  or  a  6.  Abolished  in  some  states  by  stat- 

remainder  made  to  another.   Co.  Litt.,  ute  and   retained   in  otherH.     Consiilt 

309;   Bouvier  Law   Diet.  Attornment,  the  local  statutes. 

They    are    aboliplied    in    the    United  7.  See  local  statutes. 
States.     4  Kent  Com.  479. 


Chap.  XIX.]  Of  Title  by  Aliexa-tion.  277 

and  purchases  are  voidable,  but  not  actually  void.*  The 
king,  indeed,  on  behalf  of  an  idiot  may  avoid  his  grants  or 
other  acts.  But  it  hath  been  said  that  a  non  compos  him- 
self, though  he  be  afterwards  brought  to  a  right  mind,  shall 
not  be  permitted  to  allege  his  own  insanity  in  order  to 
avoid  such  grant;  for  that  no  man  shall  be  allowed  to 
stultify  himself  or  plead  his  own  disability.'^  Clearly  the 
next  heir,  or  other  person  interested,  may,  after  the  death 
of  the  idiot  or  non  compos,  take  advafatage  of  his  incapacity 
and  avoid  the  grant.  And  so,  too,  if  he  purchases  under 
this  disability,  and  does  not  afterwards  upon  recovering  his 
senses  agree  to  the  purchase,  his  heir  may  either  waive  or 
accept  the  estate  at  his  option.  In  like  manner  an  infant 
may  waive  such  purchase  or  conveyance  when  he  comes  to 
full  age ;  or  if  he  does  not  actually  agree  to  it,  his  heirs  may 
waive  it  after  him.  Persons  also  who  purchase  or  convey 
under  duress,  may  affirm  or  avoid  such  transaction  when- 
ever the  duress  is  ceased. 

The  case  of  a  feme-covert  is  somewhat  different.  She 
may  purchase  an  estate  without  the  consent  of  her  husband, 
and  the  conveyance  is  good  during  the  coverture,  till  he 
avoids  it  b}^  some  act  declaring  his  dissent.  [293]  And 
though  he  does  nothing  to  avoid  it,  or  even  if  he  actually 
consents,  the  fame-covert  herself  may,  after  the  death  of 
her  husband,  waive  or  disagree  to  the  same;  nay,  even  her 
heirs  may  waive  it  after  her  if  she  dies  before  her  husband, 
or  if  in  her  widowhood  she  does  nothing  to  express  her 
consent  or  agreement.    But  the  conveyance  or  other  con- 

8.  See  the  leading  case  of  Zouch  v.  all    reported    in   Ewell's   Lead.    Cases 

Parsons,    3    Burr,"  1794;    s.   c,    1   W.  (1st  Ed.) ,  760-794.  (Cases  collected  in 

Black,    575;    Ewell's    Lead.    Cases,    3  the  notes.) 

et  seq.  and  notes.     See  ante,  notes.  As  to  the  effect  of^drunkenness,  8?e 

As  to  duress,  see  Stepney  v.  Lloyd,  Ewell's   Lead.   Cases    (1st  Ed.),   728- 

Cro.  Eliz.,  647,  and  Watkins  v.  Baird,  759  and  notes.                                       * 

6    Mass.    506     (duress    of    imprison-  Deaf    and    dumb    persons    are    not 

ment)  ;    Whitefield  v.   Longfellow,   13  deemed   idiots.     Brower  v.   Fisher,   4 

Me.   146    (duress  per  minus,  i.  e.,  by  John.   Oh.   721;    Ewell's   Lead.    Cases 

threats);      Astley     v.     Reynolds,     2  (1st  Ed.),  721-727  and  notes. 

Strange,  915;  Skeete  v.  Beale,  11  Ad.  9.  No  longer  the  law.     See  preced- 

&    Ell.    983,    and    Sasportas    v.    Jen-  ing  note. 
nings,  1  Bay.  470   (duress  of  goods)  ; 


278  Of  Title  by  Alienation.  [Book  II. 

tract  of  a  feme-covert  (except  by  some  matter  of  record) 
is  absolutely  void  and  not  merely  voidable,  and  therefore 
cannot  be  affirmed  or  made  good  by  any  subsequent  agree- 
ment.^ 

The  case  of  an  alien  bom  is  also  peculiar.  For  he  may 
purchase  anything,  but  after  purchase  he  can  hold  nothing 
except  a  lease  for  years  of  a  house  for  convenience  of  mer- 
chandise, in  case  he  be  an  alien  friend;  all  other  purchases 
(when  found  by  an  inquest  of  office)  being  immediately 
forfeited  to  the  crown.'^ 

Papists,  lastly,  and  persons  professing  the  popisli  religion,  and  neglect- 
ing to  talce  the  oath  prescribed  by  statute  18  Geo.  III.  c.  60,  within  the 
time  limited  for  that  purpose,  are  by  statute  11  &  12  W.  Ill,  c.  4,  dis- 
abled to  purchase  any  lands,  rents,  or  hereditaments,  and  all  estates 
made  to  their  use  or  in  trust  for  them  are  void.  [This  disability  is  now 
abolished  by  statute.] 

II.  Next,  how  may  a  man  aliene  or  convey;  which  will 
lead  us  to  consider  the  several  modes  of  conveyance. 

The  common  assurances  of  the  kingdom  are  of  four  kinds: 
1.  By  matter  in  pais,  or  deed,  which  is  an  assurance  trans- 
acted between  two  or  more  private  persons  in  pais  in  the 
country,  that  is  (according  to  the  old  common  law)  upon  the 
very  spot  to  be  transferred  [294] ;  2.  By  matter  of  record; 
or  an  assurance  transacted  only  in  the  king 's  public  courts 
of  record ;  3.  By  special  custom  obtaining  in  some  particular 
places,  and  relating  only  to  some  particular  species  of  prop- 
erty, —  which  three  are  such  as  take  effect  during  the  life 
of  the  party  conveying  or  assuring.  4.  The  fourth  takes 
no  effect  till  after  his  death,  and  that  is  by  devise  contained 
in  his  last  will  and  testament.  We  shall  treat  of  each  in 
its  order. 

^1.  This  was  the  well  settled  rule  of  nois,  the  common  law  disabilities  of 

the  common  law  and  is  still  the  rule  married  women  have  been  entirely  re- 

where  the  law  has  not  been  changed  moved  by  statutes,  and  in  others  they 

by     statute.      Martin    v.    Dwelly,     6  have  been  partially  removed  or  greatly 

Wend.    9;    Jackson   v.   Vanderheyden,  modified.     See  the  local   statutes. 

17  John  167;  Ewell's  Lead.  Cases  (1st  2.  This  disability  is  quite  generally 

Ed.),  298,  310  and  notes.  abolished  in  the  United  States.     See 

In  some  states,  however,  as  in  Illi-  ante,  notes. 


CiiAP.  XX.]  Or  Alienation  by  Deed.  279 


CHAPTER  XX. 

OF   ALIENATION   BY  DEED. 

I.  A  deed  is  a  writing  sealed  and  delivered  by  the  par- 
ties.^ [295]  It  is  sometimes  called  a  charter,  carta,  from 
its  materials ;  but  most  usually  when  applied  to  the  transac- 
tions of  private  subjects,  it  is  called  a  deed,  because  it  is 
the  most  solemn  and  authentic  act  that  a  man  can  possibly 
perform  with  relation  to  the  disposal  of  his  property,  and 
therefore  a  man  shall  always  be  esopped  by  his  own  deed, 
or  not  permitted  to  aver  or  prove  anything  in  contradiction 
to  what  he  has  once  so  solemnly  and  deliberately  avowed.^ 
If  a  deed  be  made  by  more  parties  than  one,  there  ought 
to  be  regularly  as  many  copies  of  it  as  there  are  parties, 
and  each  should  be  cut  or  indented  (formerly  in  acute 
angles  in  star  dentium,  like  the  teeth  of  a  saw,  but  at  present 
in  a  waving  line)  on  the  top  or  side,  to  tally  or  correspond 
with  the  other,  which  deed,  so  made,  is  called  an  indenture.^ 
Formerly,  when  deeds  were  more  concise  than  at  present,  it 
was  usual  to  write  both  parts  on  the  same  piece  of  parchment, 
with  some  word  or  letters  of  the  alphabet  written  between 
them,  through  which-  the  parchment  was  cut,  either  in  a 
straight  or  indented  line,  in  such  a  manner  as  to  leave  half 
the  word  on  one  part  and  half  on  the  other.  Deeds  thus 
made  were  denominated  sijngrapha  by  the  canonists,  and 
with  us  chirographa  or  handwritings,  the  word  cirographuni 

1.  Signing  was  formerly,  Before  the  3.  An  indenture  now  differs  from 
Statute  of  Frauds,  unnecessary  to  the  a  deed-poll  in  that  it  purports  to  be 
validity  of  a  deed;  but  is  now  neces-  executpd  between  two  or  more  parties 
sary.  and   contains   the   word   "  indenture  " 

2.  Hopkins,  Real  Prop.,  453.  at  its  beginning,  whereas  a  deed-poll 
Deeds    of    release     and    quit-claim      purports  to  be  executed  by  one  party 

work   no   estoppel   on  the  grantor   as  only,    the    grantor.      The    cutting    or 

to     subsequently     acquired    interests,  indenting  described  by  the  author  is 

though  they  do  as  to  rights  existing  no   longer    in    use.       Conveyances    of 

at  the  time  of  making  the  conveyance,  real  estate  have  been  variously  regu- 

Hopkins  Real  Prop.,  454.     See,  gener-  lated  by  statutes  in  the  several  states, 

ally,    Bigelow    on    Estoppel,    6th    Ed.  which  consult. 
(1913). 


280  Of  Alienation  by  Deed.  [Book  II. 

OP  cyrofjraphum  being  usually  that  which  is  divided  in  making 
the  indenture;  and  this  custom  is  still  preserved  in  making 
out  the  indentures  of  a  fine,  whereof  hereafter.  [296]  But 
at  length  indenting  only  has  come  into  use,  without  cutting 
tlirough  any  letters  at  all,  and  it  seems  at  present  to  serve 
for  little  other  purpose  than  to  give  name  to  the  species 
of  the  deed.  When  the  several  parts  of  an  indenture  are 
interchangeably  executed  by  the  several  parties,  that  part 
or  copy  which  is  executed  by  the  grantor  is  usually  called 
the  original,  and  the  rest  are  counterparts;  though  of  late 
it  is  most  frequent  for  all  the  parties  to  execute  every  part, 
which  renders  them  all  originals.  A  deed  made  by  ono 
party  only  is  not  indented,  but  polled,  or  shaved  quite  even, 
and  therefore  called  a  deed-poll,  or  a  single  deed.* 

II.  Next,  the  requisites  of  a  deed.  The  prst  of  which  is 
that  there  be  persons  able  to  contract  and  be  contracted 
with  for  the  purposes  intended  by  the  deed,  and  also  a  thing, 
or  subject-matter,  to  be  contracted  for,  —  all  which  must  be 
expressed  by  sufficient  names.  So  as  in  every  grant  there 
must  be  a  grantor,  a  grantee,  and  a  thing  granted,  in  every 
lease  a  lessor,  a  lessee,  and  a  thing  demised. 

Secondly,  the  deed  must  be  founded  upon  good  and  suffi- 
cient consideration.  Not  upon  an  usurious  contract,  nor 
upon  fraud  or  collusion  either  to  deceive  purchasers  bona 
fide,  or  just  and  lawful  creditors,  —  any  of  which  bad  con- 
siderations will  vacate  the  deed  and  subject  such  persons  as 
put  the  same  in  ure,  to  forfeitures,  and  often  to  imprison- 
ment. A  deed,  also,  or  other  grant  made  without  any  con- 
sideration is,  as  it  were,  of  no  effect,  for  it  is  construed  to 
inure  or  to  be  effectual  only  to  the  use  of  the  gi'antor  himself.'^ 
The  consideration  may  be  either  a  good  or  a  valuable  one. 
A  good  consideration  is  such  as  that  of  blood  or  of  natural 
love  and  affection,  when  a  man  grants  an  estate  to  a  near 
relation,  being  founded  on  motives  of  generosity,  prudence, 
and  natural  duty.  A  valuable  consideration  is  such  as 
money,  marriage,  or  the  like,  which  the  law  esteems  an 

4.  See  note,  supra.  void  or  voidable  aa  to  the  grantor's 

5.  A  voluntary  deed  is  good  as  be-      creditors, 
tw  en   the   parties   to   it.     It   may  be 


Chap.  XX.]  Of  Alienation  by  Deed.  '  281 

equivalent  given  for  the  grant,  and  is  therefore  founded  in 
motives  of  justice.  [297]  Deeds  made  upon  good  considera- 
tion only  are  considered  as  merely  voluntary,  and  are  fre- 
quently set  aside  in  favor  of  creditors  and  hona-fide  pur- 
chasers.^ 

Thirdly,  the  deed  must  be  written,  or,  I  presume,  printed, 
for  it  may  be  in  any  character  or  any  language,  but  it  must 
be  upon  paper  or  parchment.  For  if  it  be  written  on  stone, 
board,  linen,  leather,  or  the  like,  it  is  no  deed.  Wood  or 
stone  may  be  more  durable,  and  linen  less  liable  to  rasures, 
but  writing  on  paper  or  parchment  unites  in  itself,  more 
perfectly  than  any  other  way,  both  those  desirable  qual- 
ities; for  there  is  nothing  else  so  durable,  and  at  the  same 
time  so  little  liable  to  alteration,  nothing  so  secure  from 
alteration  that  is  at  the  same  time  so  durable.  It  must  also 
have  the  regular  stamps  imposed  on  it  by  the  several  stat- 
utes for  the  increase  of  the  public  revenue,  else  it  cannot 
be  given  in  evidence.'^  Formerly  many  conveyances  were 
made  by  parol,  or  word  of  mouth  only,  without  writing; 
but  this  giving  a  handle  to  a  variety  of  frauds,  the  statute 
29  Car.  II.  c.  3,  enacts  that  no  lease-estate  or  interest  in 
lands,  tenements,  or  hereditaments,  made  by  livery  of  seisin 
or  by  parol  only  (except  leases  not  exceeding  three  years 
from  the  making,  and  whereon  the  reserved  rent  is  at  least 
two-thirds  of  the  real  value),  shall  be  "looked  upon  as  of 
greater  force  than  a  lease  or  estate  at  will,  nor  shall  any 
assignment,  grant,  or  surrender  of  any  interest  in  any  free- 
hold hereditaments  be  valid,  unless  in  both  cases  the  same 

6.  The  acknowledgment  of  a  consid-  1-88   and   notes.     The   statutes   of   13 

eration  in  the  deed  while  it  estops  the  Eliz.,  c.   5,  designed  to  protect   cred- 

grantor  from  denying  a  consideration  itors,   and    27   Eliz.,   c.   4,   to   protect 

for  the  purpose  of  avoiding  the  deed,  bona  fide  purchasers,  are  construed  in 

does  not  conclude  him  as  to  the  quan-  Twyne's  Case,  and  the  American  au- 

ium  or   amount   thereof,   which   may,  thorities    are   collected    in    the   notes. 

when  relevant,  be  proved  by  any  com-  Similar  statutes  have  been  enacted  in 

petent  evidence.   Hopkins,  Real  Prop.,  most,   if   not  all,   of  the  states.     See 

410,  427,  the  local  statutes  and  generally  Bige- 

As  to  the  effect  of  conveyances  in  low  on  Fraud   (1890),  2  vols, 

fraud  of  creditors  and  bona  fide  pur-  7.  There    is    at    present    no    stamp 

chasers,  see  Tvvyne's  Case,  3  Coke.  80;  law  in  the  United  States,  though  one 

1  Smith's  Ltad.  Cases  (6th  Am.  Ed.),  is  under  consideration. 


282  Of  Alienation  by  Deed.  [Book  II. 

be  put  in  writing  and  signed  by  the  party  granting,  or  his 
agent  lawfully  authorized  in  writing.^ 

Fourthly,  the  matter  written  must  be  legally  or  orderly 
set  forth,  that  is,  there  must  be  words  sufficient  to  specify 
the  agreement  and  bind  the  parties,  —  which  sufficiency 
must  be  left  to  the  courts  of  law  to  determine.  [298] 

1.  The  premises  may  be  used  to  set  forth  the  number  and 
names  of  the  parties,  with  their  additions  or  titles.  They 
also  contain  the  recital,  if  any,  of  such  deeds,  agreements, 
or  matters  of  fact  as  are  necessary  to  explain  the  reasons 
upon  which  the  present  transaction  is  founded;  and  herein 
also  is  set  down  the  consideration  upon  which  the  deed  is 
made.  And  then  follows  the  certainty  of  the  grantor, 
grantee,  and  thing  granted. 

2,  3.  Next  come  the  habendum  and  tenendum.  The  office 
of  the  habendum  is  properly  to  determine  what  estate  or 
interest  is  granted  by  the  deed,  though  this  may  be  per- 
formed, and  sometimes  is  performed,  in  the  premises,  in 
which  case  the  habendum  may  lessen,  enlarge,  explain,  or 
qualify,  but  not  totally  contradict  or  be  repugnant  to  the 
estate  granted  in  the  premises.  As  if  a  grant  be  "  to  A  and 
the  heirs  of  his  body"  in  the  premises,  habendum  "to  him 
and  his  heirs  forever,"  or  vice  versa.  Here  A  has  an  estate- 
tail,  and  a  fee-simple  expectant  thereon.  But  had  it  been 
in  the  premises  "to  him  and  his  heirs,"  habendum  "to  him 
for  life,"  the  habendum  would  be  Titterly  void;  for  an  estate 
of  inheritance  is  vested  in  him  before  the  habendum  comes, 
and  shall  not  afterwards  be  taken  away  or  devested  by  it. 
The  tenendum,  "  and  to  hold,"  is  now  of  very  little  use,  and 
is  only  kept  in  by  custom.  It  was  sometimes  formerly  used 
to  signify  the  tenure  by  which  the  estate  granted  was  to  be 
holden,  viz.,  "  tenendum  per  servitium  miUtare,  in  burgaglo, 
in  libera  socagio^  etc."  [299]     But  all  these  being  now  re- 

8.  This  statute  has  in  whole  or  in  conveyance  blanks  in  the  state  where 
part  been  re-enact«d  in  most  of  the  he  resides  and  study  them  and  corn- 
states;  and  in  all,  so  far  as  we  know,  pare  them  with  the  requirements  of 
conveyances  of  land  are  by  deed,  the  text  and  the  local  statutes  and 
though   the   forms   thereof  have   been  decisions. 

greatly  simplified.    The  student  is  ad-  9.  To  hold   by  military   service,   in 

vised    to    purchase    a   set   of    printed  burgage,   in  free  socage,  etc. 


Chap.  XX.]   •         Of  Alienation  by  Deed.  283 

duced   to   free  and   common   socage,   the   tenure   is   never 
specified. 

4.  Next  follow  the  terms  of  stipulation,  if  any,  upon 
which  the  grant  is  made,  the  first  of  which  is  the  redden- 
dum, or  reservation,  whereby  the  grantor  doth  create  or 
reserve  some  new  thing  to  himself  out  of  what  he  had  before 
granted,  as  "rendering  therefor  yearly  the  sum  of  ten  shil- 
lings, or  a  pepper-corn,  or  two  days'  ploughing,  or  the  like." 
To  make  a  reddendum  good,  if  it  be  of  anything  newly  created 
by  the  deed,  the  reservation  must  be  to  the  grantors,  or 
some,  or  one  of  them,  and  not  to  any  stranger  to  the  deed. 
But  if  it  be  of  ancient  services  or  the  like  annexed  to  the 
land,  then  the  reservation  may  be  to  the  lord  of  the  fee. 

5.  Another  of  the  terms  upon  which  a  grant  may  be  made 
is  a  condition,  which  is  a  clause  of  contingency,  on  the  hap- 
pening of  which  the  estate  granted  may  be  defeated:  as 
**  provided  always,  that  if  the  mortgagor  shall  pay  the 
mortgagee  £500  upon  such  a  day,  the  whole  estate  granted 
shall  determine;  "  and  the  like.  [300] 

6.  Next  may  follow  the  clause  of  warranty,  whereby  the 
grantor  doth,  for  himself  and  his  heirs,  warrant  and  secure 
to  the  grantee  the  estate  so  granted. 

7.  After  warranty  usually  follow  covenants  or  conven- 
tions, which  are  clauses  of  agreement  contained  in  a  deed, 
whereby  either  party  may  stipulate  for  the  truth  of  certain 
facts,  or  may  bind  himself  to  perform  or  give  something  to 
the  other.  [304]  Thus  the  grantor  may  covenant  that  he 
hath  a  right  to  convey,  or  for  the  grantee's  quiet  enjoy- 
ment, or  the  like ;  the  grantee  may  covenant  to  pay  his  rent 
or  keep  the  premises  in  repair,  &c.  If  the  covenantor 
covenants  for  himself  and  his  heirs,  it  is  then  a  covenant 
real,  and  descends  upon  the  heirs,  who  are  bound  to  perform 
it,  provided  they  have  assets  by  descent,  but  not  otherwise. 
If  he  covenants  also  for  his  executors  and  administrators,  his 
personal  assets,  as  well  as  his  real,  are  likewise  pledged  for 
the  performance  of  the  covenant,  which  makes  such  covenant 
a  better  security  than  any  warranty.  It  is  also  in  some  re- 
spects a  less  security,  and  therefore  more  beneficial  to  the 
grantor,  who  usually  covenants  only  for  the  acts  of  himself 


284  Of  Alienation  by  Deed.         •       [Book  IT. 

and  his  ancestors,  whereas  a  general  iranantij  extends  to  all 
mankind, —  for  which  reasons  the  covenant  has  in  modern 
practice  totally  supersede  the  other,^ 

8.  Lastly  comes  the  conclusion,  which  mentions  the 
execution  and  date  of  deed,  or  the  time  of  its  being  given 
or  executed,  either  expressly  or  by  reference  to  some  day 
and  year  before  mentioned.  Not  but  a  deed  is  good  al- 
though it  mention  no  date,  or  hath  a  false  date,  or  even  if 
it  hath  an  impossible  date,  as  the  thirtieth  of  February, 
provided  the  real  day  of  its  being  dated  or  given,  that  is 
delivered,  can  bo  proved. 

The  fifth  requisite  for  making  a  good  deed  is  the  reading 
of  it.  This  is  necessary  wherever  any  of  the  parties  desire 
it,  and  if  it  be  not  done  on  his  request,  the  deed  is  void  as  to 
him.  If  he  can,  he  should  read  it  himself;  if  he  be  blind  or 
illiterate,  another  must  read  it  to  him.  If  it  be  read  falsely 
it  will  be  void,  at  least  for  so  much  as  is  misrecited,  unless 
it  be  agreed  by  collusion  that  the  deed  shall  be  read  false  on 
purpose  to  make  it  void,  for  in  such  case  it  shall  bind  the 
fraudulent  party.^ 

Sixthly,  it  is  requisite  that  the  party  whose  deed  it  is 
should  seal,  and  now  in  most  cases  [by  virtue  of  the  statute 
of  frauds]  I  apprehend  should  sign  it  also.'^   [305] 

A  seventh  requisite  to  a  good  deed  is  that  it  be  delivered 
by  the  party  himself  or  his  certain  attorney,  which  there- 
fore is  also  expressed  in  the  attestation,  "sealed  and  dcJic- 
cred/'  [307]  A  deed  takes  effect  only  from  this  tradi- 
tion or  delivery;  for  if  the  date  be  false  or  impossible,  the 

1.  In  this  country  the  usual  cove-  See,  generally,  as  to  the  requisites  of 
nants  are  (1)  the  covenant  of  seisin;  deeds,  Hopkins,  Real  Prop.,  414  et  seq. 
(2 J  of  good  right  to  sell  and  convey;  3.  A  common  law  seal  is  an  impres- 
(3)    against   incumbrances;     (4)    for  sion   upon   wax,   wafer   or   any   other 

quiet  enjoyment;   and   (5)    of  general  tenacious  substance  capable  of  receiv- 

warranty.  ing   an   impression.      In   many   states 

2.  Hopkins,  Real  Prop.,  429.  a  seal  is  no  longer  necessary;  in  oth- 
If  a  party  to  the  deed  can  read,  he  ers  a  scroll  made  by  a  pen  or  printed 

is  conclusively  presumed  to  know  the  on  the  paper  is  sufficient.   So  in  Michi- 
contents  of  the  instrument,  thougli  lie  gan  and  Illinois.    See,  generally,  Hop- 
did  not  actually  read  it  before  it  was  kins,  Real   Prop.,  429,  430. 
executed.     Hopkins,  Real  Prop.,  429. 


Chap.  XX.] 


Of  Alie>'ation  by  Deed. 


28i 


delivery  ascertains  the  time  of  it.  And  if  another  person 
seals  the  deed,  yet  if  the  party  delivers  it  himself,  he 
thereby  adopts  the  sealing,  and  by  a  parity  of  reason  the 
signing  also,  and  makes  them  both  his  own.  A  delivery 
may  be  either  absolute,  that  is  to  the  party  or  grantee  him- 
self, or  to  a  third  person,  to  hold  till  some  conditions  be 
performed  on  the  part  of  the  grantee,  in  which  last  case 
it  is  not  delivered  as  a  deed  but  as  an  escrow,  that  is,  as  a 
scrowl  or  writing  which  is  not  to  take  effect  as  a  deed  till 
the  conditions  be  performed,  and  then  it  is  a  deed  to  all 
intents  and  purposes.^ 

The  last  requisite  to  the  validity  of  a  deed  is  the  attesta- 
tion, or  execution  of  it  in  the  presence  of  icitnesses,  though 
this  is  necessary  rather  for  preserving  the  evidence  than 
for  constituting  the  essence  of  the  deed.^ 


4.  When  the  condition  has  been 
performed  the  deed  takes  effect  from 
the  time  of  the  first  delivery,  unless 
intervening  rights  have  attached. 
Hopkins,  Real  Prop.,  436,  437. 

5.  Attestation  by  witnesses  and  ac- 
knowledgment before  an  officer  are 
usually  also  required  in  this  country 
in  order  to  entitle  the  deed  to  record; 
and  in  some  states  in  order  to  render 
it  valid.  The  local  statutes  should  be 
carefully  examined  before  using  any 
printed  blank. 

Illinois  has,  by  statute,  provided  an 
optional  system  of  registration  of 
title,  the  so-called  Torren's  system. 
See  111.  Land  Titles  Act,  approved 
June  13,  1895;  Rev.  Stat.  111.,  ch.  30, 
sees.  43  et  seq.;  Hopkins,  Real  Prop., 
412,  413;  The  Torren's  System,  by  M. 
M.  Yeakle,  1894. 

The  following  will  serve  as  an  ex- 
ample of  a  modern  deed: 

This  Indenture,  Made  this  31st  day 
of  August,  in  the  year  of  our  Lord 
one  thousand  nine  hundred  and  four- 
teen,    between     James    Jackson     and 


Mary  Jackson,  his  wife,  both  of  the 
City  of  Ludington,  Mason  County, 
Michigan,  parties  of  the  first  part, 
and  Henry  James  of  the  same  place 
of  the  second  part, 

Witnesseth,  That  the  said  parties 
of  the  first  part,  for  and  in  considera- 
tion of  the  sum  of  one  dollar  and 
other  valuable  considerations  to  them 
in  hand  paid  by  the  said  party  of  the 
second  part,  the  receipt  whereof  in 
hereby  confessed  and  acknowledged, 
do  by  these  presents  grant,  bargain, 
sell,  remise,  release,  alien  and  con- 
firm unto  the  said  party  of  the  second 
part,  and  his  heirs  and  assigns,  for- 
ever, all  that  certain  piece  or  parcel 
of  land  situate  and  being  in  the  City 
of  Ludington,  County  of  Mason,  and 
State  of  Michigan,  and  described  as 
follows,  to-wit: 

[Here  insert  description  of  the 
premises  conveyed.] 

Together  with  all  and  singular  tiie 
hereditaments  and  appurtenanc;'3 
thereunto  belonging  or  in  anywise  ap- 
pertaining: To  Have  and  to  Hold 
the  said  premises  as  above  described. 


286 


Of  Alienation  by  Deed. 


[Book  II. 


III.  Next,  how  may  a  deed  be  avoided,  or  rendered  of 
no  effect.  [308]  And  from  what  has  been  before  laid  down, 
it  will  follow  that  if  a  deed  wants  any  of  the  essential  re- 


with  the  appurtenances,  unto  the  said 
party  of  the  second  part,  and  to  his 
lieirs  and  assigns  forever.  And  the 
said  James  Jackson,  one  of  said  par- 
ties of  the  first  part,  for  himself,  his 
heirs,  executors  and  administrators, 
does  covenant,  grant,  bargain  and 
agree  to  and  with  the  said  party  of 
the  second  part,  his  htirs  and  assigns, 
that  at  the  time  of  the  ensealing  and 
delivery  of  these  presents,  he  is  well 
seized  of  the  above  granted  premises 
in  fee  simple;  that  they  are  free  from 
all  incumbrances  wliatever  and  that 
he  will,  and  his  heirs,  executors,  and 
administrators  shall  Warrant  and 
Defend  the  same  against  all  lawful 
claims  wliatsoever. 

[Any  exceptions,  reservations,  con- 
ditions and  special  covenants,  if  any, 
may  be  inserted  here.  The  order  of 
sequence  is  not  important.] 

In  M'itness  Whereof,  the  said  par- 
ties of  the  first  part  have  hereunto 
set  their  hands  and  seals  the  day  and 
year  first  above  written. 

James  Jackson.      [Seal] 
Mary  Jackson.       [Seal] 
Sealed  and  delivered  in  presence  of 
John  Doe, 
Richard  Roe. 
State   of  Michigan, 
County  of  Mason,  ss. : 

On  this  31st  day  of  Au- 
gust, in  the  year  one  thou- 
sand nine  hundred  and  four- 
teen, before  me  a  notary  pub- 
lic in  and  for  said  county, 
personally  appeared  James 
OflRcial  Jackson  and  Mary  Jackson, 
Seal  his  wife,  to  me  known  to  be 
the  same  persons  described 
ill    and    who    executed    the 


within  instrument,  who  sev- 
erally acknowledged  the  same 
to  be  their  free  act  and  deed. 

r»        «        »        ♦        ♦        ♦        •1 

Hugh  A.  Thompson, 
Notary  Public  in  and  for  said  county. 

My  commission  will  expire  on  the 
1st  day  of  August,  1916. 

•    Hugh  A.  Thompson. 

Note. —  The  provision  of  the  stat- 
ute as  to  the  acknowledgment  must 
be  followed.  If,  as  is  often  the  case, 
a  separate  examination  of  the  wife, 
etc.,  is  required,  tlie  following  clause, 
or  one  conforming  to  the  statute, 
should  be  inser'ed  in  the  line  of  stars 
inclosed  by  brackets.  "And  the  said 
Mary  Jackson,  wife  of  the  said  James 
Jackson,  on  a  private  examination  by 
me  separate  and  apart  from  her  said 
husband,  acknowledg  d  that  she  exe- 
cuted the  said  deed  freely  and  with- 
out fear  or  compulsion  from  her  said 
husband  or  from  any  one." 

(Indorsement)  : 

WARRANTY   DEED. 
Short  Form. 


James    Jackson    and    Mary    Jackson, 

his  wife, 

to 

Henry  James. 


Register's  Office, 
State  of  Michigan,  } 
Mason  County,         ) 

Received  for  record,  the  31st  day 
of  August,  A.  D.  1914,  at  2  o'clock, 
P.  M.,  and  recorded  in  Liber  100  of 
Deeds,  on  page  500. 

Albert  Jones, 

Register. 


CiiAP.  XX.]  Of  Alienation  by  Deed.  287 

quisites  before  mentioned,  either, —  1.  Proper  parties  and 
a  proper  subject-matter;  2.  A  good  and  sufficient  considera- 
tion; 3.  Writing  on  paper  or  parchment  duly  stamped;  4. 
Sufficient  and  legal  words,  properly  disposed;  5.  Reading, 
if  desired,  before  the  execution;  6.  Sealing  and,  by  the 
statute,  in  most  cases  signing  also;  or  7.  Delivery, —  it  is 
a  void  deed  ah  initio.^  It  may  also  be  avoided  by  matter 
ex  post  facto;  as,  1.  By  rasure,  interlining,  or  other  altera- 
tion in  any  material  part,  unless  a  memorandum  is  made 
thereof  at  the  time  of  the  execution  and  attestation.^  2.  By 
breaking  off  or  defacing  the  seal.  3.  By  delivering  it  up 
to  be  cancelled,  that  is,  to  have  lines  drawn  over  it  in  the 
form  of  lattice-work  or  cancelli,  though  the  phrase  is  now 
used  figuratively  for  any  manner  of  obliteration  or  defacing 
it.^  [309]  4.  By  the  disagreement  of  such  whose  concur- 
rence is  necessary  in  order  for  the  deed  to  stand,  as  the 
husband,  where  a  feme-covert  is  concerned,  an  infant,  or 
person  under  duress,  when  those  disabilities  are  removed, 
and  the  like.  5.  By  the  judgment  or  decree  of  a  court  of 
judicature.  This  was  anciently  the 'province  of  the  Court 
of  Star-Chamber,  and  now  of  the  Chancery,  when  it  ap- 
pears that  the  deed  was  obtained  by  fraud,  force,  or  other 
foul  practice,  or  is  proved  to  be  an  absolute  forgery.  In 
any  of  these  cases  the  deed  may  be  voided,  either  in  part 
or  totally,  according  as  the  cause  of  avoidance  is  more  or 
less  extensive.^ 

6.  See  the  preceding  notes.  be  admitted  in  evidence.     4  Chamber- 

7.  Happening     afterwards.       When      laynt's    Evidence,    §    3103    and    cases 
there  is  nothing  suspicious  about  the      cited. 

appearance  of  the  interlineation  or  8-  If  the  title  has  once  passed  by 
erasure,  the  better  opinion  is  that  it  virtue  of  the  deed,  any  subsequent  de- 
is  prima  facie  presumed  to  have  been  facing  or  destruction  of  the  document 
made  before  the  delivery;  but  where  though  it  may  destroy  the  evidence 
the  appearance  of  the  erasure,  etc.,  of  the  passing  of  the  title,  will  not 
is  such  as,  unexplained,  to  create  a  revert  the  title  in  the  grantor, 
suspicion,  such  suspicious  appearance  9.  See  vol.  2,  Equity,  for  a  consit'.- 
raust  be  explained  to  the  satisfaction  eration  of  *his  subject, 
of  the  judge  before  the  document  will 


288  Or  Alienation  by  Deed.  [Book  IT. 

Deeds  used  in  the  conveyance  of  real  estate  are  either 
conveyances  at  common  law,  or  such  as  receive  their  force 
and  efficacy  by  virtue  of  the  statute  of  uses. 

I.  Of  conveyances  by  the  common  law,  some  may  be 
called  origitial  or  primary  conveyances,  which  are  those  by 
means  whereof  the  benefit  or  estate  is  created  or  first  arises ; 
others  are  derivative  or  secondary,  whereby  the  benefit  or 
estate  originally  created  is  enlarged,  restrained,  transferred, 
or  extinguished. 

Original  conveyances  are  the  following:  1,  Feoffment; 
2,  Gift;  3,  Grant;  4,  Lease;  5,  Exchange;  6,  Partition.  De- 
rivative are:  7,  Release;  8,  Confirmation:  9,  Surrender;  10, 
Assignment;  11,  Defeasance.   [310] 

1.  A  feoffment  {feoff amentum)  is  a  substantive  derived 
from  the  verb  to  enfeoff  {feoff are  or  infeudare),  to  give  one 
a  feud,  and  therefore  feoffment  is  properly  donatio  feudi.  It 
is  tlie  most  ancient  method  of  conveyance,  the  most  solemn 
and  public,  and  therefore  tlie  most  easily  remembered  and 
proved.  And  it  may  properly  be  defined  the  gift  of  any 
corporeal  hereditament  to  another.  He  that  so  gives -or 
enfeoffs  is  called  the  feoffor,  and  the  person  enfeoffed  is 
denominated  the  feoffee. 

This  is  plainly  derived  from,  or  is  indeed  itself  the  very 
mode  of,  the  ancient  feodal  donation ;  for  though  it  may  be 
performed  by  the  word  "  enfeoff,"  or  "  grant,"  yet  the  aptest 
word  of  feoffment  is  "  do  or  dedi."  But  by  the  mere  words 
of  the  deed  the  feoffment  is  by  no  means  perfected;  there 
remains  a  very  material  ceremony  to  be  performed,  called 
livery  of  seisin,  without  which  the  feoffee  has  but  a  mere  es- 
tate at  will.  [311]  This,  livery  of  seisin  is  no  other  than 
the  pure  feodal  investiture  or  delivery  of  corporeal  posses- 
sion of  the  land  or  tenement,  which  was  held  absolutely 
necessary  to  complete  the  donation.^ 

Livery  of  seisin,  by  the  common  law,  is  necessary  to  be 
made  upon  every  grant  of  an  estate  of  freehold  in  heredita- 
ments corporeal,  whether  of  inheritance  or  for  life  only. 

1.  Deeds  of  feoffment  and  livery  of      is   a  deed   of   bargain   and   sale.     See 
seisin    are   obsolete    in    this   country.      Hopkins,   Real  Prop.,  405. 
Tlie  most  common  form  of  conveyance 


Chap.  XX.]  Or  Alienation  by  Deed.  280 

[314]  In  hereditaments  incorporeal  it  is  impossible  to  be 
made,  for  they  are  not  the  object  of  the  senses,  and  in 
leases  for  years  or  other  chattel  interests  it  is  not  neces- 
sary. In  leases  for  years  indeed  an  actual  entry  is  neces- 
sary to  vest  the  estate  in  the  lessee,  for  the  bare  lease  gives 
him  only  a  right  to  enter,  which  is  called  his  interest  in  the 
term,  or  interesse  termini;  and  when  he  enters  in  pursuance 
of  that  right,  he  is  then,  and  not  before,  in  possession  of 
his  term,  and  complete  tenant  for  years. 

On  the  creation  of  a  freehold  remainder  at  one  and  the 
same  time  with  a  particular  estate  for  years  at  the  com- 
mon law  livery  must  be  made  to  the  particular  tenant.  But 
if  such  a  remainder  be  created  afterwards,  expectant  on  a 
lease  for  years  now  in  being,  the  livery  must  not  be  made 
to  the  lessee  for  years,  for  then  it  operates  nothing.  But 
it  must  be  made  to  the  remainder-man  himself,  by  consent 
of  the  lessee  for  years,  for  without  his  consent  no  livery  of 
the  possession  can  be  given,  —  partly  because  such  forcible 
livery  would  be  an  ejectment  of  the  tenant  from  his  term, 
and  partlj'  for  the  reasons  before  given  for  introducing  the 
doctrine  of  attornments.   [315] 

Livery  of  seisin  is  either  in  deed  or  in  law.  Livery  in 
deed  is  thus  performed.  The  feoffor,  lessor,  or  his  attorney, 
together  with  the  feoffee,  lessee,  or  his  attorney  (for  this 
may  as  effectually  be  done  by  deputy  or  attorney  as  by  the 
principals  themselves  in  person),  come  to  the  land  or  to  the 
house,  and  there,  in  the  presence  of  witnesses,  declare  the 
contents  of  the  feoffment  or  lease  on  which  livery  is  to  be 
made.  And  then  the  feoffor,  if  it  be  of  land,  doth  deliver 
to  the  feoffee,  all  other  persons  being  out  of  the  ground,  a 
clod  or  turf,  or  a  twig  or  bough,  there  growing,  with  words 
to  this  effect :  ' '  I  deliever  these  to  you  in  the  name  of  seisin 
of  all  the  lands  and  tenements  contained  in  this  deed." 
But  if  it  be  of  a  house,  the  feoffor  must  take  the  ring  or 
latch  of  the  door,  the  house  being  quite  empty,  and  deliver 
it  to  the  feoffee  in  the  same  form;  and  then  the  feoffee  must 
enter  alone  and  shut  to  the  door,  and  then  open  it  and  let 
in  the  others.  If  the  conveyance  or  feoffment  be  of  divers 
lands  lying  scattered  in  one  and  the  same  county,  then  in 
19  -  -, 


290  Of  Alienation  by  Deed.  [Book  II. 

the  feoffor's  possession,  livery  of  seisin  of  any  parcel  in  the 
name  of  the  rest  sufficeth  for  all;  but  if  they  be  in  several 
counties  there  must  be  as  many  liveries  as  there  are  coun- 
ties. For  if  the  title  to  these  lands  comes  to  be  disputed, 
there  must  be  as  many  trials  as  there  are  counties,  and  the 
jury  of  one  county  are  no  judges  of  the  notoriety  of  a  fact 
in  another.  Besides,  anciently  this  seisin  was  obliged  to 
be  delivered  coram  paribus  de  mcineto,  before  the  peers  or 
freeholders  of  the  neighborhood,  who  attested  such  de- 
livery in  the  body  or  on  the  back  of  the  deed.  Also,  if  the 
lands  be  out  on  lease,  though  all  lie  in  the  same  county, 
there  must  be  as  many  liveries  as  there  are  tenants,  because 
no  livery  can  be  made  in  this  case  but  by  the  consent  of  the 
particular  tenant,  and  the  consent  of  one  will  not  bind  the 
rest.  [316]  And  in  all  these  cases  it  is  prudent  and  usual 
to  endorse  the  livery  of  seisin  on  the  back  of  the  deed, 
specifying  the  manner,  place,  and  time  of  making  it,  to- 
gether with  the  names  of  the  witnesses. 

Livery  in  law  is  where  the  same  is  not  made  on  the  land, 
but  in  sight  of  it  only,  the  feoffor  saying  to  the  feoffee,  "  I 
give  you  yonder  land;  enter  and  take  possession."  Here, 
if  the  feoffee  enters  during  the  life  of  the  feoffor,  it  is  a 
good  livery,  but  not  otherwise,  unless  he  dares  not  enter, 
through  fear  of  his  life  or  bodily  harm;  and  then  his  con- 
tinual claim,  made  yearly  in  due  form  of  law,  as  near  as 
possible  to  the  lands,  will  suffice  without  an  entry.  This 
livery  in  law  cannot,  however,  be  given  or  received  by 
attorney,  but  only  by  the  parties  themselves. 

2.  The  conveyance  by  gift  {donatio)  is  properly  applied 
to  the  creation  of  an  estate-tail,  as  feoffment  is  to  that  of  an 
estate  in  fee,  and  lease  to  that  of  an  estate  for  life  or  years. 
It  differs  in  nothing  from  a  feoffment  but  in  the  nature  of 
an  estate  passing  by  it,  for  the  operative  words  of  convey- 
ance in  this  case  are  do  or  dcdi,  and  gifts  in  tail  are  equally 
imperfect  without  livery  or  seisin,  as  feoffments  in  fee- 
simple.^ 

2.  See  preceding  note.  Estates-tail,  containing  the  proper  words  of  limi- 
wliere  they  exist,  are  limited  by  an  tation.  See  Hopkins,  Real  Prop.,  406, 
ordinary    deed    of    bargain    and    sale      411. 


CiiAP.  XX.]  Of  Alienation  by  Deed.  291 

3.  Grants,  concessioncs,  constitute  the  regular  method  by 
the  common  law  of  transferring  the  property  of  incorporeal 
hereditaments,  or  such  things  wherebf  no  livery  can  be  had. 
£317]  For  which  reason  all  corporeal  hereditaments,  as 
lands  and  houses,  are  said  to  lie  in  livery;  and  the  others, 
as  advowsons,  commons,  rents,  reversions,  &c.,  to  lie  in 
f/rant.  These,  therefore,  pass  merely  by  the  delivery  of 
the  deed.  And  in  signiories,  or  reversions  of  lands,  such 
grant,  together  with  the  attornment  of  the  tenant  (w^hile 
attornments  were  requisite),  were  held  to  be  of  equal  noto- 
riety with,  and  therefore  equivalent  to,  a  feoffment  and 
livery  of  lands  in  immediate  possession.  It  therefore  dif- 
fers but  little  from  a  feoffment,  except  in  its  subject-matter, 
for  the  operative  words  therein  commonly  used  are  dcdi  et 
concessit  "  have  given  and  granted."^ 

4.  A  lease  is  properly  a  conveyance  of  any  lands  or  tene- 
ments (usually  in  consideration  of  rent  or  other  annual 
recompense)  made  for  life,  for  years,  or  at  will,  but  always 
for  a  less  time  than  the  lessor  hath  in  the  premises;  for  if  it 
be  for  the  icholc  interest,  it  is  more  properly  an  assignment 
than  a  lease.  The  usual  words  of  operation  in  it  are  "  de- 
mise, grant,  and  to  farm  let;  dimisl,  conccssi,  ct  ad  firmam 
tradidiJ'  [318]  By  this  conveyance  an  estate  for  life,  for 
years,  or  at  will,  may  be  created,  either  in  corporeal  or 
incorporeal  hereditaments,  though  livery  of  seisin  is  in- 
deed incident  and  necessary  to  one  species  of  leases,  viz., 
leases  for  life  of  corporeal  hereditaments,  but  to  no  other.^ 

By  the  common  law,  as  it  has  stood  for  many  centuries, 
all  persons  seised  of  any  estate  might  let  leases  to  endure 
so  long  as  their  own  interest  lasted,  but  no  longer.  There- 
fore tenant  in  fee-simple  might  let  leases  of  any  duration, 
for  he  hath  the  whole  interest;  but  tenant  in  tail,  or  tenant 
for  life,  could  make  no  leases  which  should  bind  the  issue 
in  tail  or  reversioner,  nor  could  a  husband,  seised  jure 


3,  See    Hopkins,    Real    Trop.,    407.  ished  by  statute  in  some  states.    Hop- 

The   statutes   in   many   of   the   states  kins,   Real   Prop.,   411;    1.  Stim.  Am, 

provide    short    form    deeds    either    of  Stat.  Law,  §  1470. 

warranty  or  quitclaim.    The  common  4.  No     longer     necessary.       As     to 

law  forms  may,  however,  still  be  used,  leases,  see  Hopkins,  Real  Prop.,  407. 
except   that  feoffment  has  been  abol- 


292  Of  Alienation  by  Deed.  [Book  II. 

n.roria?  make  a  firm  or  valid  lease  for  any  longer  term 
than  the  joint  lives  of  himself  and  his  wife,  for  then  his 
interest  expired. 

5.  An  exchange  is  a  mutual  grant  of  equal  interests,  the 
one  in  consideration  of  the  other.  [323]  The  word  "  ex- 
change "  is  so  individually  requisite  and  appropriated  by 
law  to  this  case,  that  it  cannot  be  supplied  by  any  other 
word,  or  expressed  by  any  circumlocution.  The  estates 
exchanged  must  be  equal  in  quantity;  not  of  value,  for  that 
is  immaterial,  but  of  interest;  as  fee-simple  for  fee-simple, 
a  lease  for  twenty  years  for  a  lease  for  twenty  years,  and 
the  like.  And  the  exchange  may  be  of  things  that  lie 
either  in  grant  or  in  livery.  But  no  livery  of  seisin,  even  in 
exchanges  of  freehold,  is  necessary  to  perfect  the  convey- 
ance; for  each  party  stands  in  the  place  of  the  other  and 
occupies  his  right,  and  each  of  them  hath  already  had 
corporal  possession  of  his  owfl.  land.  But  entry  must  be 
made  on  both  sides;  for  if  eitlier  party  die  before  entry, 
the  exchange  is  void  for  want  of  sufficient  notoriety.^ 

6.  A  partition  is  when  two  or  more  joint-tenants,  copar- 
ceners, or  tenants  in  eommon  agree  to  divide  the  lands  so 
held  among  them  in  severalty,  each  taking  a  distinct  part.^ 
[324]  Here,  as  in  some  instances  there  is  a  unity  of  inter- 
est and  in  all  a  unity  of  possession,  it  is  necessary  that  they 
all  mutually  convey  and  assure  to  each  other  the  several 
estates  which  they  are  to  take  and  enjoy  separately.  By 
the  common  law  coparceners,  being  compellable  to  make 
partition,  might  have  made  it  by  parol  only;  but  joint- 
tenants  and  tenants  in  common  must  have  done  it  by  deed : 
and  in  both  cases  the  conveyance  must  have  been  perfected 
by  livery  of  seisin.  And  the  statutes  of  31  Hen.  VIII.  c.  1 
and  32  Hen.  VIII.  c.  32  made  no  alteration  in  this  point. 
But  the  statute  of  frauds,  20  Car.  II.  c.  2,  hath  now  abol- 
ished this  distinction,  and  made  a  deed  in  all  cases 
necessary. 

5.  By  right  of  his  wife.  7.  This  may  be  effected  by  mutual 

6.  See  Hopkins  on  Real  Est.,  407.  deeds  of  quitclaim.  See,  generally. 
An  exchange  may  be  effected  by  sep-  Hopkins  on  Real  Estate,  344.  See 
arate   deeds   executed    by   the   respec-  the  local  statutes. 

live  parties  to  each  otKer. 


Chap.  XX.]  Of  Alienation  by  Deed.  '  293 

These  are  the  several  species  of  primanj  or  original  con- 
veyances. Those  which  remain  are  of  the  secondary  or 
derivative  sort,  which  presuppose  some  other  conveyance 
precedent,  and  only  serve  to  enlarge,  confirm,  alter,  re- 
strain, restore,  or  transfer  the  interest  granted  by  such 
original  conveyance.     As, 

7.  Releases;  which  are  a  discharge  or  a  conveyance  of  a 
man's  right  in  lands  or  tenements  to  another  that  hath  some 
former  estate  in  possession.  The  words  generally  used 
therein  are  ''  remised,  released,  and  for  ever  quit-claimed."* 
And  these  releases  may  inure  either,  1.  By  way  of  enlarging 
an  estate  or  enlarger  Testate:  as  if  there  be  tenant  for  life  or 
years,  remainder  to  another  in  fee,  and  he  in  remainder  re- 
leases all  his  right  to  the  particular  tenant  and  his  heirs;  this 
gives  him  the  estate  in  fee.  But  in  this  case  the  relessee 
must  be  in  possession  of  some  estate  for  the  release  to  work 
upon;  for  if  there  be  lessee  for  years,  and,  before  he  enters 
and  is  in  possession,  the  lessor  releases  to  him  all  his  right 
in  the  reversion,  such  release  is  void  for  want  of  possession 
in  the  relessee.  2.  By  way  of  passing  an  estate^  or  mitter 
Testate:  as  when  one  of  two  coparceners  releaseth  all  her 
right  to  the  other,  this  passeth  the  fee-simple  of  the  whole. 
[325]  And  in  both  these  cases  there  must  be  a  privity  of 
estate  between  the  relessor  and  relessee;  that  is,  one  of  their 
estates  must  be  so  related  to  the  other  as  to  make  but  one 
and  the  satne  estate  in  law.  3.  By  way  of  passing  a  right, 
or  mitter  le  droit:  as  if  a  man  be  disseised,  and  releaseth  to 
his  disseisor  all  his  right,  hereby  the  disseisor  acquires  a 
new  right,  which  changes  the  quality  of  his  estate,  and  ren- 
ders that  lawful  which  before  was  tortious  or  wrongful. 
4,  By  way  of  extinguishment :  as  if  my  tenant  for  life  makes 
a  lease  to  A  for  life,  remainder  to  B  and  his  heirs,  and  I 
release  to  A;  this  extinguishes  my  right  to  the  reversion, 
and  shall  inure  to  the  advantage  of  B's  remainder  as  well 
as  of  A's  particular  estate.     5.  By  way  of  entry  and  feoff- 

8.  In  common  use  in  the  United  grantee  is  not  necessary  and  further 
States.  "  A  release  is  like  our  mod-  in  the  release  privity  of  estate  be- 
ern  quit-claim  deed,  except  that  in  tween  the  parties  was  required." 
the     quit-claim     possession     of     the  Hopkins,  Real  Estate,  408. 


294  Of  Alienatiox  by  Deed.  [Book  II. 

ment:  as  if  there  be  two  joint- disseisors,  and  the  disseisee 
releases  to  one  of  them,  he  shall  be  sole  seised,  and  shall 
keep  out  his  former  companion;  which  is  the  same  in  effect 
•as  if  the  disseisee  had  entered  and  thereby  put  an  end  to 
the  disseisin,  and  afterwards  had  enfeoffed  one  of  the  dis- 
seisors in  fee.  And  hereupon  we  may  observe,  that  when  a 
man  has  in  himself  the  possession  of  lands,  he  must  at  the 
common  law  convey  the  freehold  by  feoffment  and  livery, 
which  makes  a  notoriety  in  the  country.  But  if  a  man  has 
only  a  right  or  a  future  interest,  he  may  convey  that  right 
or  interest  by  a  mere  release  to  him  that  is  in  possession 
of  the  land,  for  the  occupancy  of  the  relessee  is  a  matter 
of  sufficient  notoriety  already. 

8.  A  confirmation  is  of  a  nature  nearly  allied  to  a  release. 
Sir  Edward  Coke  defines  it  to  be  a  conveyance  of  an  estate 
or  right  in  esse,  whereby  a  voidable  estate  is  made  sure 
and  unavoidable,  or  whereby  a  particular  estate  is  in- 
creased; and  the  words  of  making  it  are  these,  **  have  given, 
granted,  ratified,  approved,  and  confirmed.  "**  An  instance 
of  the  first  branch  of  the  definition  is,  if  tenant  for  life 
leaseth  for  forty  years,  and  dieth  during  that  term,  here 
the  lease  for  years  is  voidable  by  him  in  reversion;  yet,  if 
he  hath  confirmed  the  estate  of  the  lessee  for  years,  before 
the  death  of  tenant  for  life,  it  is  no  longer  voidable,  but 
sure.  [326]  The  latter  branch,  or  that  which  tends  to  the 
increase  of  a  particular  estate,  is  the  same  in  all  respects 
with  that  species  of  release  which  operates  by  way  of  en- 
largement. 

9.  A  surrender,  sursumrcclditio,  or  rendering  up,  is  of  a 
nature  directly  opposite  to  a  release;  for  as  that  operates 
by  the  greater  estate's  descending  upon  the  less,  a  surren- 
der is  the  falling  of  a  less  estate  into  a  greater.  It  is  de- 
fined a  yielding  up  of  an  estate  for  life  or  years  to  him 
that  hath  the  immediate  reversion  or  remainder,  wherein 
the  particular  estate  may  merge  or  drown  by  mutual  agree- 

9.  It  should  not  be  used  if  the  con-  many    courts    be    made    eflective    as 
veyance  it  is  intended  to  validate  was  some  other  form  of  conveyance.    Hop- 
originally  void,  though  it  is  said  that  -kins,  Real  Prop.,  408. 
such     an     instrument   would   now    by 


Chap.  XX.]  Of  Alienation  by  Deed.  295 

ment  between  them.^  It  is  done  by  these  words,  "  hatli 
surrendered,  granted,  and  yielded  up."  The  surrenderor 
must  be  in  possession,  and  the  surrenderee  must  have  a 
higher  estate,  in  which  the  estate  surrendered  may  merge; 
therefore  tenant  for  life  cannot  surrender  to  him  in  remain- 
der for  years.  In  a  surrender  there  is  no  occasion  for 
livery  of  seisin,  for  there  is  a  privity  of  estate  between  the 
surrenderor  and  the  surrenderee:  the  one's  particular  es- 
tate and  the  other's  remainder  are  one  and  the  same  estate, 
and  livery  having  been  once  made  at  the  creation  of  it, 
there  is  no  necessity  for  having  it  afterwards.  And,  for 
the  same  reason,  no  livery  is  required  on  a  release  or  con- 
firmation in  fee  to  tenant  for  years  or  at  will,  though  a  free- 
hold thereby  passes,  since  the  reversion  of  the  lessor  or 
€onfirmor,  and  the  particular  estate  of  the  relessee  or  con- 
firmee, are  one  and  the  same  estate;  and  where  there  is 
already  a  possession,  derived  from  such  a  privity  of  estate, 
any  further  delivery  of  possession  would  be  vain  and 
nugatory. 

10.  An  assignment  is  properly  a  transfer,  or  making  over 
to  another,  of  the  right  one  has  in  any  estate;  but  it  is 
usually  applied  to  an  estate  for  life  or  years.  And  it  dif- 
fers from  a  lease  only  in  this,  that  by  a  lease  one  grants  an 
interest  less  than  his  own,  reserving  to  himself  a  reversion; 
in  assignments  he  parts  with  the  whole  property,  and  the 
assignee  stands  to  all  intents  and  purposes  in  the  place  of 
the  assignor.^   [327] 

1.  Privity  of  estate  is  necessary,  ing  a  thing  not  in  existence,  as  to 
and  the  surrender  can  be  made  only  build  a  wall  upon  the  premises,  tha 
to  the  holder  of  the  next  immediate  assignee  will  not  be  bound;  but  the 
esate.     Hopkins,   Real   Prop.,  408.  assignee  will  be   bound,   if  the  lessee 

2.  This  is  not  universally  true;  for  has  covenanted  for  himself  and  as- 
Ihere  is  a  variety  of  distinctions  when  signs.  Where  the  lessee  covenants  for 
the  assignee  is  bound  by  the  covenants  himself,  his  executors  and  adminis- 
of  the  assignor,  and  when  he  is  not.  trators,  to  reside  upon  the  premises, 
The  general  rule  is,  that  he  is  hound  this  covenant  binds  his  assignee,  for 
hif  all  covenants  which  run  with  the  it  runs  with,  or  is  appurtenant  to, 
land;  hut  not  hy  collateral  covenants  the  thing  demised.  2  Hen.  Bl.  133. 
which  do  not  run  xcHh  the  land.  As  The  assignee  in  no  case  is  bound  by 
if  a  Itssee  covenants  for  himself,  ex-  the  covenant  of  the  lessee,  to  build 
«cutors   and   administrators,   concern-  a  house  for  the  lessor  any  where  of 


296  Of  Alienation  by  Deed.  [Book  IT. 

11.  A  defeasance  is  a  collateral  deed,  made  at  the  same 
time  with  a  feoffment  or  other  conveyance,  containing  cer- 
tain conditions,  upon  the  performance  of  which  the  estate 
then  created  may  be  defeated  or  totally  undone.  And  in 
this  manner  mortgages  Avere  in  former  times  usually  made ; 
the  mortgagor  enfeoffing  the  mortgagee,  and  he  at  the  same 
time  executing  a  deed  of  defeasance,  whereby  the  feoff- 
ment was  rendered  void  on  repayment  of  the  money  bor- 
rowed at  a  certain  day.^  And  this,  when  executed  at  the 
same  time  with  the  original  feoffment,  was  considered  as 
part  of  it  by  the  ancient  law,  and,  therefore,  only  indulged, 
—  no  subsequent  secret  revocation  of  a  solemn  conveyance, 
executed  by  livery  of  seisin,  being  allowed  in  those  days 
of  simplicity  and  truth,  though,  when  uses  were  after- 
wards introduced,  a  revocation  of  such  uses  was  permitted 
by  the  courts  of  equity.  But  things  that  were  merely  ex- 
ecutory, or  to  be  completed  by  matter  subsequent  (as  rents, 
of  which  no  seisin  could  be  had  till  the  time  of  payment), 
and  so  also  annuities,  conditions,  warranties,  and  the  like, 
were  always  liable  to  be  recalled  by  defeasances  made  sub- 
sequent to  the  time  of  their  creation. 

II.  Conveyances  which  have  their  force  and  operation  by 
virtue  of  the  statute  of  uses. 

Uses  and  trusts  are  in  their  original  of  a  nature  very 
similar,  or  rather  exactly  the  same,  answering  more  to  the 
fidei-commissum*  than  the  usus  fructus^  of  the  civil  law, 

the  prctniscs,  or  to  pay  money  to  a  ing  the  kingdom,  provided  the  assign- 
stranger.     5  Co.  16.     The  assignee  is  ment  be   executed   before   liis   depart- 
not  bound  by  a  covenant  broken  before  ure.     IB.  &  P.  21.     The  same  prin- 
assignment.     3  Burr.  1271.     See  Com.  eiple  prevails  in  equity.     See  2  Bridg. 
Dig.  Covenant.     But  if  an  underlease  Eq.    Dig.    138,    1    Vern.    87,    2    Vern. 
is  made  even  for  a  day  less  than  the  103,  8  Ves.  95,  1  Sch.  &  Lefroy,  310. 
whole    term,    the    underlessee    is    not  But  the  assignee's  liability  commpnce* 
liable   for    rent   or    covenants    to   the  upon  acceptance  of  the  lease,  though 
original  lessee,  like  an  assignee  of  the  he  never  enter.     1  B.  &  P.  238. 
whole  term.     Dougl.  183,  56.     An  as-  3.  The    conveyance    and    defeasance 
signee  is  liable  for   rent  only  whilst  of  a   mortgage      are  now   in   practice 
he  continues  in  possession  under  the  combined   (though  not  necessarily  so) 
assignment.     And  he   is   held   not   to  in  one  instrument, 
be   guilty   of   a   fraud,   if   he   assigns  4.  A  trust, 
even  to  a  beggar,  or  to  a  person  leav-  5.  A  usufruct. 


Chap.  XX.]  Of  Alienation  by  Deed.  297 

■which  latter  was  the  temporary  right  of  using  a  thing  with- 
out having  the  ultimate  property  or  full  dominion  of  the 
substance.  But  the  fidei-commissum,  which  usually  was  cre- 
ated by  will,  was  the  disposal  of  an  inheritance  to  one,  in 
confidence  that  he  should  convey  it  or  dispose  of  the  profits 
at  the  will  of  another.  [328]  In  our  law,  a  use  is  a  confi- 
dence reposed  in  another  who  was  tenant  of  the  land,  or 
terre-tenant,  that  he  should  dispose  of  the  land  according  to 
the  intentions  of  cestui/  que  use,  or  him  to  whose  use  it  was 
granted,  and  suffer  him  to  take  the  profits.  As,  if  a  feoff- 
ment was  made  to  A  and  his  heirs,  to  the  use  of  (or  in  trust 
for)  B  and  his  heirs,  here  at  the  common  law  A,  the  terrc- 
tenant,  had  the  legal  property  and  possession  of  the  land, 
but  B,  the  cestui/  que  use,  was  in  conscience  and  equity  to 
have  the  profits  and  disposal  of  it. 

This  notion  was  transj^lanted  into  England  from  the  civil 
law,  about  the  close  of  the  reign  of  Edward  III.,  by  means  of 
the  foreign  ecclesiastics,  who  introduced  it  to  evade  the 
statutes  of  mortmain,  by  obtaining  grants  of  lands,  not  to 
religious  houses  directly,  but  to  the  use  of  the  religious 
houses,  which  the  clerical  chancellors  of  those  times  held  to 
be  fidci-conimissa  and  binding  in  conscience,  and  therefore 
assumed  the  jurisdiction  which  Augustus  had  vested  in  his 
praetor,  of  compelling  the  execution  of  such  trusts  in  the 
Court  of  Chancery. 

Originally  it  was  held  that  the  chancery  could  give  no 
relief  but  against  the  very  person  himsielf  intrusted  for 
cestui/  que  use,  and  not  against  his  heir  or  alienee.  [329] 
This  was  altered  in  the  reign  of  Henry  VI.  with  respect  to 
the  heir,  and  afterwards  the  same  rule,  by  a  parity  of  rea- 
son, was  extended  to  such  alienees  as  had  purchased  either 
without  a  valuable  consideration,  or  w^th  an  express  notice 
of  the  use.  But  a  purchaser  for  a  valuable  consideration, 
without  notice  might  hold  the  land  discharged  of  any  trust 
or  confidence.  And  also  it  was  held  that  neither  the  king 
nor  queen  on  account  of  their  dignity  royal,  nor  any  corpo- 
ration aggregate  on  account  of  its  limited  capacity,  could 
be  seised  to  any  use  but  their  own;  that  is,  they  might  hold 
the  lands,  but  were  not  compellable  to  execute  the  trust. 


298  Of  Alienation  BY  Deed.  [Book  IT. 

[330]  And  if  the  feoffee  to  uses  died  without  heir,  or  com- 
mitted a  forfeiture  or  married,  neither  the  lord  who  entered 
for  his  escheat  or  forfeiture,  nor  the  husband  who  retained 
the  possession  as  tenant  by  the  curtesy,  nor  the  wife  to 
whom  dower  was  assigned,  were  liable  to  perform  the  use,, 
because  they  were  not  parties  to  the  trust,  but  came  in  by 
act  of  law,  though  doubtless  their  title  in  reason  was  no 
better  than  that  of  the  heir. 

On  the  other  hand  the  use  itself,  or  interest  of  cestuy 
que  use,  was  learnedly  refined  upon  with  many  elaborate 
distinctions.  And,  1.  It  was  held  that  nothing  could  be 
granted  to  a  use  whereof  the  use  is  inseparable  from  the 
possession,  as  annuities,  ways,  commons,  and  authorities, 
qiMC  ipso  usu  consumuntur,^  or  whereof  the  seisin  could 
not  be  instantly  given.  2.  A  use  could  not  be  raised  with- 
out a  sufficient  consideration.  For  where  a  man  makes  a 
feoffment  to  another,  without  any  consideration,  equity 
presumes  that  he  meant  it  to  the  use  of  himself,  unless  he 
expressly  declares  it  to  be  to  the  use  of  another,  and  then 
nothing  shall  be  presumed  contrary  to  his  own  expressions. 
But  if  either  a  good  or  a  valuable  consideration  appears,, 
equity  will  immediately  raise  a  use  correspondent  to  such 
consideration.  3.  Uses  were  descendible  according  to  the 
rules  of  the  common  law  in  the  case  of  inheritances  in  pos- 
session, for  in  this  and  many  other  respects  aequitas  sequitur 
legem,  and  cannot  establish  a  different  rule  of  property  from 
that  which  the  law  has  established.  4.  Uses  might  be  as- 
signed by  secret  deeds  between  the  parties,  or  be  devised 
by  last  w^ill  and  testament;  for  as  the  legal  estate  in  tho 
soil  was  not  transferred  by  these  transactions,  no  livery  of 
seisin  was  necessary,  and  as  the  intention  of  the  parties  was 
the  leading  principle  in  this  species  of  property,  any  instru- 
ment declaring  that  intention  was  allow^ed  to  be  binding  in 
equity.  [331]  But  cestuy  que  use  could  not  at  common  law 
aliene  the  legal  interest  of  the  lands  without  the  concur- 
rence of  his  feoffee,  to  whom  he  was  accounted  by  law  to  be 
only  tenant  at  sufferance.  5.  Uses  were  not  liable  to  any 
of  the  feodal  burthens,  and  particularly  did  not  escheat  for 

6.  Which    is    consumed    in   the   use  itself. 


CiiAP.  XX.]  Of  Alienation  by  Deed.  299 

felony  or  other  defect  of  blood;  for  escheats,  &c.,  are  the 
consequence  of  tenure,  and  uses  are  held  of  nobody.  But 
the  land  itself  was  liable  to  escheat  whenever  the  blood  of 
the  feoffee  to  uses  was  extinguished  by  crime  or  by  defect, 
and  the  lord  (as  was  before  observed)  might  hold  it  dis- 
charged of  the  use.  6.  No  wife  could  be  endowed,  or  hus- 
band have  his  curtesy,  of  a  use,  for  no  trust  was  declared 
for  their  benefit  at  the  original  grant  of  the  estate;  and 
therefore  it  became  customary,  when  most  estates  were  put 
in  use,  to  settle  before  marriage  some  joint  estate  to  the 
use  of  the  husband  and  wife  for  their  lives,  which  was  the 
original  of  modern  jointures.  7.  A  use  could  not  be  ex- 
tended by  writ  of  elegit,  or  other  legal  process,  for  the  debts 
of  cestui/  que  use;  for,  being  merely  a  creature  of  equity, 
the  common  law,  which  looked  no  farther  than  to  the  person 
actually  seised  of  the  land,  could  award  no  process 
against  it.  "" 

[On  account  of  the  inconveniences  arising  from  the  rules 
above  stated,  various  statutes  were  enacted,  the  provisions 
of  which]  all  tended  to  consider  cestui/  que  use  as  the  real 
owner  of  the  estate,  and  at  length  that  idea  was  carried  into 
full  effect  by  the  statute  27  Hen.  VIII.  c.  10,  which  is 
usually  called  the  statute  of  uses,  or,  in  conveyances  and 
pleadings,  the  statute  for  transferring  uses  into  possession, 
which,  after  reciting  the  various  inconveniences  before  men- 
tioned and  many  others,  enacts,  that  ^'  w^hen  any  person 
shall  be  seised  of  lands,  &c.,  to  the  use,  confidence,  or  trust 
of  any  other  person  or  body  politic,  the  person  or  corpora- 
tion entitled  to  the  use  in  fee-simple,  fee-tail  for  life,  or 
years,  or  otherwise,  shall  from  thenceforth  stand  and  be 
seised  or  possessed  of  the  land,  &c.,  of  and  in  the  like  estates 
as  they  have  in  the  use,  trust,  or  confidence,  and  that  the 
estate  of  the  person  so  seised  to  uses  shall  be  deemed  to  be 
in  him  or  them  that  have  the  use,  in  such  quality,  manner, 
form,  and  condition,  as  they  had  before  in  the  use."  [333] 
The  statute  thus  executes  the  use;  that  is,  it  conveys  the 
possession  to  the  use,  and  transfers  the  use  into  possession, 
thereby  making  cestui/  que  use  complete  owner  of  the  lands 
and  tenements,  ae  w^ell  at  law  as  in  equity. 


300  Of  Alienation"  by  Deed.  [Book  IT. 

The  statute  having  thus  not  abolished  the  conveyance  to 
uses,  but  only  annihilated  the  intervening  estate  of  the 
feoffee,  and  turned  the  interest  of  ccsfidj  que  use  into  a 
legal  instead  of  an  equitable  ownership,  the  courts  of  com- 
mon law  began  to  take  cognizance  of  uses,  instead  of  send- 
ing the  party  to  seek  his  relief  in  chancery.  And,  con- 
sidering them  now  as  merely  a  mode  of  conveyance,  very 
many  of  the  rules  before  established  in  equity  were  adopted 
with  improvements  by  the  judges  of  the  common  law.  The 
same  persons  only  were  held  capable  of  being  seised  to  a 
use;  the  same  considerations  were  necessary  for  raising  it; 
and  it  could  only  be  raised  of  the  same  hereditaments  as 
formerly.  But  as  the  statute,  the  instant  it  was  raised, 
converted  it  into  an  actual  possession  of  the  land,  a 
great  number  of  the  incidents  that  formerly  attended  it 
in  its  fiduciary  state  were  now  at  an  end.  The  land  could 
not  escheat  or  be  forfeited  by  the  act  or  defect  of  the 
feoffee,  nor  be  aliened  to  any  purchaser  discharged-  of  the 
use,  nor  be  liable  to  dower  or  curtesy  on  account  of  the 
seisin  of  such  feoffee,  because  the  legal  estate  never  rests 
in  him  for  a  moment,  but  it  is  instantaneously  transferred 
to  cestui/  que  use  as  soon  as  the  use  is  declared.  And,  as 
the  use  and  the  land  were  now  convertible  terms,  they 
became  liable  to  dower,  curtesy,  and  escheat,  in  conse- 
quence of  the  seisin  of  cestui/  que  use,  who  was  now  become 
the  terre-tenant  also,  and  they  likewise  were  no  longer  de- 
visable by  will. 

The  various  necessities  of  mankind  induced  also  the  judges 
very  soon  to  depart  from  the  rigor  and  simplicity  of  the 
rules  of  the  common  law,  and  to  allow  a  more  minute  and 
complex  construction  upon  conveyances  to  uses  than  upon 
others.  [334]  Hence  it  was  adjudged  that  the  use  need 
not  always  be  executed  the  instant  the  conveyance  is  made, 
but,  if  it  cannot  take  effect  at  that  time,  the  operation  of 
the  statute  may  wait  till  the  use  shall  arise  upon  some 
future  contingency,  to  happen  within  a  reasonable  period 
of  time,  and  in  the  mean  while  the  ancient  use  shall  remain 
in  the  original  grantor;  as,  when  lands  are  conveyed  to  the 
use  of  A  and  B,  after  a  marriage  shall  be  had  between 


Chap.  XX.] 


Of  Alienation  by  Deed. 


301 


them,  or  to  the  use  of  A  and  his  lieirs  till  B  shall  pay  him 
a  sum  of  money,  and  then  to  the  use  of  B  and  his  heirs,  — 
which  doctrine,  when  devises  by  will  were  again  introduced 
and  considered  as  equivalent  in  point  of  constructions  to 
declarations  of  uses,  was  also  adopted  in  favor  of  executory 
devises.  But  herein  these,  which  are  called  contingent,  or 
springing  uses,^  differ  from  an  executory  devise,  in  that 


7.  Mr.  Sugden  devotes  a  learned 
and  instructive  note,  of  considerable 
length  (annexed  to  the  second  chapter 
of  his  edition  of  Gilbert  on  Uses),  to 
an  elucidation  of  this  subject.  Mr. 
Sugden  says,  shifting,  secondary  and 
springing  uses,  are  frequently  con- 
founded with  eacli  other,  and  with 
future  or  contingent  uses.  They  may 
perhaps  be  thus  classed:  1st,  Shift- 
ing or  secondary  uses,  which  take  ef- 
fect in  derogation  of  some  other  es- 
tate, and  are  either  limited  expressly 
by  the  deed,  or  are  authorized  to  be 
created  by  some  person  named  in  the 
deed.  2ndly,  Springing  uses,  confin- 
ing this  class  to  uses  limited  to  arise 
on  a  future  event,  where  no  preceding 
u=e  is  limited,  and  which  do  not  take 
ffTect  in  derogation  of  any  other  in- 
terest than  that  which  results  to  the 
grantor,  or  remains  in  him,  in  the 
meantime.  3dly,  Future  or  contin- 
gent uses,  are  properly  uses  to  take 
effect  as  remainders;  for  instance,  a 
use  to  the  first  unborn  son  of  A.,  after 
a  previous  limitation  to  him  for  life, 
or  for  years,  determinable  on  his  life, 
is  a  future  or  contingent  use;  but 
yet  does  not  answer  the  notion  of 
either  a  shifting  or  a  springing  use. 
Contingent  uses  naturally  arose,  after 
the  statute  of  27  Hen.  A^III.,  in  imi- 
ta'ion  of  contingent  remainders. 

The  first  class,  that  is.  shifting  or 
secondary  uses,  are  at  this  day  so 
common  that  they  pass  without  obser- 
vation.   In  every  marriage  settl  ment. 


the  first  use  is  to  llie  owner  in  fee 
until  marriage,  and  after  the  m&r- 
riage  to  other  uses.  Here,  the  owner, 
in  the  first  instance,  takes  the  fee, 
which  upon  the  marriage  ceases,  and 
the  new  use  arises.  But  a  shifting  use 
cannot  be  limited  on  a  shifting  use; 
and  shifting  uses  must  be  confined 
within  such  limits  as  are  not  to  tend 
to  a  perpetuity.  (See  ante,  chap.  11.) 
But  a  sliifting  use  may  be  created 
after  an  estaie-tail,  fo  take  effect  at 
any  period,  however  remote;  because 
the  tenant  in  tail  for  the  time  being 
may,  by  a  recovery,  defeat  the  shift- 
ing use. 

As  to  the  second  class,  or  springing 
uses,  before  the  statute  of  Hen.  VIII. 
there  was  no  mischief  in  an  independ- 
ent original  springing  use,  to  com- 
mence at  a  distant  period,  because 
tlie  legal  estate  remained  in  the  trus- 
tee. After  the  statute,  too,  the  use 
was  held  to  result  to,  or  remain  in, 
the  person  creating  the  future  use, 
according  to  the  mode  of  conveyance 
adopted,  till  the  springing  use  arose. 
This  resulting  use  the  statute  exe- 
cuted, so  that  the  estate  remained  in- 
the  settlor  till  the  period  when  the 
use  was  to  rise;  which  might  be  at 
any  time  within  the  limits  allowed 
by  law,  in  case  of  an  executory  de- 
vise. When  springing  uses  are  raised 
by  convej'ances  not  operating  by 
transmutation  of  possession,  as  such 
conveyances  have  only  an  equitable 
eflTect  until  the  s'atute  and  use  meet, 


302  Of  Alienation  by  Deed.       "^'      [Book  II. 

there  must  be  a  person  seised  to  such  uses  at  the  time  when 
the  contingency  happens,  else  they  can  never  be  executed 
by  the  statute;  and  therefore  if  the  estate  of  the  feoffee  to 
such  use  be  destroyed  by  alienation  or  otherwise  before 
the  contingency  arises,  the  use  is  destroyed  forever; 
whereas  by  an  executory  devise  the  freehold  itself  is  trans- 
ferred to  the  future  devisee.  And  in  both  these  cases  a 
fee  may  be  limited  to  take  effect  after  a  fee,  because, 
though  that  was  forbidden  by  the  common  law  in  favor 
of  the  lord's  escheat,  yet  when  the  legal  estate  was  not 
extended  beyond  one  fee-simple,  such  subsequent  uses  (af- 
ter a  use  in  fee)  were  before  the  statute  permitted  to  be 
limited  in  equity,  and  then  the  statute  executed  the  legal 
estate  in  the  same  manner  as  the  use  before  subsisted.  It 
was  also  held  that  a  use,  though  executed,  may  change  from 
one  to  another  by  circumstances  ex  post  facto,  as  if  A  makes 
a  feoffment  to  the  use  of  his  intended  wife  and  her  eldest 
son  for  their  lives,  upon  the  marriage  the  wife  takes  the 
whole  use  in  severalty,  and  upon  the  birth  of  a  son  the  use 
is  executed  jointly  in  them  both.  [335]  This  is  sometimes 
called  a  secondary,  sometimes  a  shifting  use.  And  when- 
ever the  use  limited  by  the  deed  expires  or  cannot  vest, 
it  returns  back  to  him  who  raised  it,  after  such  expiration 
or  during  such  impossibility,  and  is  styled  a  resulting  use. 
As  if  a  man  makes  a  feoffment  to  the  use  of  his  intended 

a    springing   use   maj'    be   limited   by  and  the  future  use  is  limited  by  way 

tluni  at  once;  but  where  the  convey-  of  remainder,  it  will  be  subject  to  the 

ance    is    one   which    does    operate   by  rules  of  common  law,  and,  if  the  pre- 

transmutation  of  possession   (as  a  fe-  vious  estate  is  not  sjiifficient   to  sup- 

ofl'ment,    fine,   recovery   or    lease   and  port   it,   will  be   void.      (See  ante,  p. 

release),  two  objects  must  be  attended  168.) 

to,  first,  to  convey  the  estate  accord-  Future     uses     have     been     counte- 

ing  to  the  rules  of  common  law;  sec-  nanced,  and  springing  uses  restrained, 

ondly,    to    raise   the   use    out    of   the  by  what   is  now   a  firm   rule  of   law, 

Beisin     created     by     the     conveyance,  namely,   that    if   such   a   construction 

Now,  the  common  law  does  not  admit  can  be  put  upon  a  limitation  in  use, 

of   a   freehold   being  limited   to  com-  as  that  it  may  take  effect  by  way  of 

mence  in  futitro.     (See  ante,  p.  143.)  remainder,   it   shall   never  take  eflfeet 

As  to  the  third  class,  or  future  or  as  a  springing  use.     (Southcot  v.  S'o- 

continrjrnt   uses,   where   an   estate    is  wel,   1   Mod.   226.   237;    2  Mod.   207; 

limited    previously    to    a    future    use,  Goodtitle  v.  Billington,  Dougl.   758.) 


Chap.  XX.]  Of  Alienation  by  Deed.  303 

wife  for  life,  with  remainder  to  the  use  of  his  first-born  son 
in  tail;  here,  till  he  marries,  the  use  results  back  to  himself; 
after  marriage,  it  is  executed  in  the  wife  for  life ;  and,  if  she 
dies  without  issue,  the  whole  results  back  to  him  in  fee. 
It  was  likewise  held  that  the  uses  originally  declared  may 
be  revoked  at  any  future  time,  and  new  uses  be  declared  of 
the  land,  provided  the  grantor  reserved  to  himself  such  a 
power  at  the  creation  of  the  estate ;  whereas  the  utmost  that 
the  common  law  would  allow  was  a  d-eed  of  defeasance 
coeval  with  the  grant  itself,  and  therefore  esteemed  a  part 
of  it,  upon  events  specially  mentioned.  And,  in  case  of 
such  a  revocation,  the  old  uses  were  held  instantly  to 
cease,  and  the  new  ones  to  become  executed  in  their  stead. 

By  this  equitable  train  of  decisions  in  the  courts  of  law, 
the  power  of  the  Court  of  Chancery  over  landed  property 
was  greatly  curtailed  and  diminished.  But  one  or  two 
technical  scruples,  which  the  judges  found  it  hard  to  get 
over,  restored  it  with  tenfold  increase.  They  held,  in  the 
first  place,  that  '  *  no  use  could  be  limited  on  a  use, ' '  and 
that  when  a  man  bargains  and  sells  his  land  for  money, 
which  raises  a  use  by  implication  to  the  bargainee,  the 
limitation  of  a  further  use  to  another  person  is  repugnant, 
and  therefore  void.  [336]  And  therefore  on  a  feoffment 
to  A  and  his  heirs  to  the  use  of  B  and  his  heirs  in  trust 
for  C  and  his  heirs,  they  held  that  the  statute  executed 
only  the  first  use,  and  that  the  second  was  a  mere  nullity? 
not  adverting  that  the  instant  the  first  use  was  executed 
in  B,  he  became  seised  to  the  use  of  C,  which  second  use 
the  statute  might  as  well  be  permitted  to  execute  as  it  did 
the  first,  and  so  the  legal  estate  might  be  instantaneously 
transmitted  down  through  a  hundred  uses  upon  uses,  till 
finally  executed  in  the  last  cestui/  que  use.  Again,  as  the 
statute  mentions  only  such  persons  as  were  seised  to  the 
use  of  others,  this  was  held  not  to  extend  to  terms  of  years 
or  other  chattel  interests  whereof  the  termor  is  not  seised, 
but  only  possessed,  and  therefore  if  a  term  of  one  thousand 
years  be  limited  to  A,  to  the  use  of  (or  in  trust  for)  B,  the 
statute  does  not  execute  this  use,  but  leaves  it  as  at  com- 
mon law.    And  lastly  (by  more  modern  resolutions),  where 


304  Of  Alienation  by  Deed.  [Book  IT. 

lands  are  given  to  one  and  his  heirs  in  trust  to  receive 
and  pay  over  the  profits  to  another,  this  use  is  not  executed 
by  the  statute,  for  the  land  must  remain  in  the  trustee  to 
enable  him  to  perform  the  trust. 

Of  the  two  more  ancient  distinctions  the  courts  of  equity 
quickly  availed  themselves.  In  the  first  case  it  was  evident 
that  B  was  never  intended  by  the  parties  to  have  any 
beneficial  interest,  and  in  the  second  the  cestuij  que  use 
of  the  term  was  expressly  driven  into  the  Court  of  Chan- 
cery to  seek  his  remedy,  and  therefore  that  court  deter- 
mined, that  though  these  were  not  uses  which  the  statute 
could  execute,  yet  stiU  they  were  trusts  in  equity  which  in 
conscience  ought  to  be  performed.  To  this  the  reason  of 
mankind  assented,  and  the  doctrine  of  uses  was  revived 
under  the  denomination  of  trusts,  and  thus  by  this  strict 
construction  of  the  courts  of  law  a  statute  made  upon  great 
deliberation  and  introduced  in  the  most  solemn  manner  has 
had  little  other  effect  than  to  make  a  slight  alteration  in 
the  formal  words  of  a  conveyance. 

However,  the  courts  of  equity  in  the  exercise  of  this  new 
jurisdiction  have  wisely  avoided  in  a  great  degree  those 
mischiefs  w^liich  made  uses  intolerable.  [337]  The  statute 
of  frauds,  29  Car.  II.  c.  3,  having  required  that  every  dec- 
laration, assignment,  or  grant  of  any  trust  in  lands  or 
hereditaments  (except  such  as  arise  from  implication  or 
Construction  of  law)  shall  be  made  in  writing  signed  by 
the  party,  or  by  his  written  will,  the  courts  now  consider  a 
trust  estate  (either  when  expressly  declared  or  resulting 
by  such  implication)  as  equivalent  to  the  legal  ownership, 
governed  by  the  same  rules  of  property,  and  liable  to  every 
charge  in  equity,  which  the  other  is  subject  to  in  law,  and 
by  a  long  series  of  uniform  determinations,  for  now  near  a 
century  past,  with  some  assistance  from  the  legislature, 
they  have  raised  a  new  system  of  rational  jurisprudence  by 
which  trusts  are  made  to  answer  in  general  all  the  benefi- 
cial ends  of  uses  without  their  inconvenience  or  frauds. 
The  trustee  is  considered  as  merely  the  instrument  of  con- 
veyance, and  can  in  no  shape  affect  the  estate  unless  by 
alienation  for  a  valuable  consideration  to  a  purchaser  with- 


Chap,  XX.]  Of  Alienation  by  Deed.  305 

ont  notice,  which,  as  cestuy  que  use  is  generally  in  posses- 
sion of  the  land,  is  a  thing  that  can  rarely  happen.  The 
trust  will  descend,  may  be  aliened,  is  liable  to  debts,  to 
executions  on  judgments,  statutes,  and  recognizances  (by 
the  express  provision  of  the  statute  of  frauds),  to  forfeiture, 
to  leases,  and  other  incumbrances, —  nay,  even  to  the  cur- 
tesy of  the  husband,  as  if  it  was  an  estate  at  law.  It  has 
not  yet  indeed  been  subjected  to  dower,  more  from  a  cau- 
tious adherence  to  some  hasty  precedents  than  from  any 
well-grounded  principle.  It  hath  also  been  held  not  liable 
to  escheat  to  the  lord  in  consequence  of  attainder  or  want 
of  heirs,  because  the  trust  could  never  be  intended  for  his 
benefit.     But  let  us  now  return  to  the  statute  of  uses. 

The  only  service,  as  was  before  observed,  to  which  this 
statute  is  now  consigned,  is  in  giving  efficacy  to  certain  new 
and  secret  species  of  conveyances,  introduced  in  order  to 
render  transactions  of  this  sort  as  private  as  possible,  and 
to  save  the  trouble  of  making  livery  of  seisin,  the  only 
ancient  conveyance  of  corporal  freeholds.*  But  this  now 
has  given  way  to 

12.  A  covenant  to  stand  seised  to  uses  is  a  conveyance 
by  which  a  man  seised  of  lands  covenants  in  consideration 
of  blood  or  marriage  that  he  will  stand  seised  of  the  same 
to  the  use  of  his  child,  wife,  or  kinsman,  for  life,  in  tail,  or 
in  fee.^  [338]  Here  the  statute  executes  at  once  the  estate, 
for  the  party  intended  to  be  benefited,  having  thus  acquired 
the  use,  is  thereby  put  at  once  into  corporal  possession  of 
the  land  without  ever  seeing  it,  by  a  kind  of  parliamentary 
magic.  But  this  conveyance  can  only  operate  when  made 
upon  such  weighty  and  interesting  considerations  as  those 
of  blood  or  marriage. 

13.  A  conveyance  by  a  bargain  and  sale  of  lands  is  a  kind 
of  real  contract  whereby  the  bargainor  for  some  pecuniary 

8.  The  Statute  of  Uses  is  in  force  viz.,    trusts    implied    by    law    for   the 

in    many    states,    having   been    re-en-  prevention  of  fraud  and  active  trusts^ 

acted   or   regarded   as   a   part   of   the  See,   generally,   Hopkins,   Real   Prop., 

common   law.     Some  states,   however,  252-289. 

following   New   York,   have  abolished  9.  Practicar.y  obsolete  in  the  United 

all    uses    and    trusls    except    as    per-  States,     Hopkins,   Real   Prop.,  410, 
mitted    in    certain    cases    by    statute, 

20 


30G  Of  Alienation  by  Deed.  [Book  IT. 

consideration  bargains  and  sells,  that  is,  contracts  to  con- 
vey the  land  to  the  bargainee,  and  becomes  by  such  a  bar- 
gain a  trustee  for,  or  seised  to  the  use  of  the  bargainee; 
and  then  the  statute  of  uses  completes  the  purchase,  or,  as 
it  hath  been  well  expressed,  the  bargain  first  vests  the  use, 
and  then  the  statute  vests  the  possession.^  But  as  it  was 
foreseen  that  conveyances  thus  made  would  want  all  those 
benefits  of  notoriety  which  the  old  common  law  assurances 
were  calculated  to  give,  to  prevent,  therefore,  clandestine 
conveyances  of  freeholds,  it  was  enacted  in  the  same  session 
of  parliament,  by  statute  27  Hen.  VIII.  c.  16,  that  such 
bargains  and  sales  should  not  inure  to  pass  a  freehold  un- 
less the  same  be  made  by  indenture  and  enrolled  within 
six  months  in  one  of  the  courts  of  Westminster  Hall  or  with 
the  custos  rotuloriim  of  the  county.  Clandestine  bargains 
and  sales  of  chattel  interests,  or  leases  for  years,  were 
thought  not  worth  regarding,  as  such  interests  were  very 
precarious  till  about  six  years  before,  which  also  occasioned 
them  to  be  overlooked  in  framing  the  statute  of  uses,  and 
therefore  such  bargains  and  sales  are  not  directed  to  be 
enrolled.  But  how  impossible  is  it  to  foresee  and  provide 
against  all  the  consequences  of  innovations!  [339]  Thi3 
omission  has  given  rise  to. 

14.  Coneyances  by  lease  and  release,  first  invented  by 
Serjeant  Moore  soon  after  the  statute  of  uses,  and  now  tl:'^ 
most  common  of  any,  were  thus  contrived:  A  lease,  or 
rather  bargain  and  sale  upon  some  pecuniary  considera- 
tion, for  one  year  is  made  by  the  tenant  of  the  freehold 
to  the  lessee  or  bargainee.  Now  this,  without  any  enrol- 
ment, makes  the  bargainor  stand  seised  to  the  use  of  the 
bargainee,  and  vests  in  the  bargainee  the  i(se  of  the  term 
for  a  year,  and  then  the  statute  immediately  annexes  the 
possession.     He,    therefore,   being   thus    in   possession,    is 

1.  See    Hopkins,    Real    Prop.,    410.  common  law  conveyances    (except  fe- 

Many    deeds    in   common   use   at    the  offments  in  some  states)   may  still  be 

present    time    are    in    form    deeds    of  employed,  the  statutory  forms  not  be- 

bargain    and    sale.      The    statutes    m  ing  mandatory.     Hopkins,  Real  Prop , 

many     states     have     provided     short  411.     In  Illinois  title  registration  by 

forms  of  conveyance,  either  warranty  the    so-called    Torrens    system    is    op- 

de.ds   or   quit-claim    deeds;    but   the  tional.     Id.,  412. 


Chap.  XX.]  Of  Alienation  by  Deed.  307 

capable  of  receiving  a  release  of  the  freehold  and  reversion, 
which,  we  have  seen  before,  must  be  made  to  a  tenant  in 
possession,  and  accordingly,  the  next  day  a  release  is 
granted  to  him.  This  is  held  to  supply  the  place  of  livery 
of  seisin,  and  so  a  conveyance  by  lease  and  release  is  said 
to  amount  to  a  feoffment.^ 

15.  To  these  may  be  added  deeds  to  lead  or  declare  the 
uses  of  other  more  direct  conveyances,  as  feoffments,  fines, 
and  recoveries,  of  which  we  shall  speak  in  the  next  chapter; 
and 

16.  Deeds  of  revocation  of  uses,  hinted  at  in  a  former 
page  [335]  and  founded  in  a  previous  power,  reserved  at 
the  raising  of  the  uses  to  revoke  such  as  were  then  declared 
and  to  appoint  others  in  their  stead,  which  is  incident  to 
the  power  of  revocation.  And  this  may  suffice  for  a  speci- 
men of  conveyances  founded  upon  the  statute  of  uses,  and 
will  finish  our  observations  upon  such  deeds  as  serve  to 
transfer  real  property. 

Before  we  conclude,  it  will  not  be  improper  to  subjoin  a 
few  remarks  upon  such  deeds  as  are  used  not  to  convey,  but 
to  charge  or  incumber  lands,  and  to  discharge  them  again; 
of  which  nature  are  ohligations  or  bonds,  recognizances,  and 
defeasances  upon  them  both.  [340] 

1.  An  obligation  or  bond  is  a  deed  whereby  the  obligor 
obliges  himself,  his  heirs,  executors,  and  administrators  to 
pay  a  certain  sum  of  money  to  another  at  a  day  appointed. 
If  this  be  all,  the  bond  is  called  a  single  one,  simplex  ohli- 
gatio.^  But  there  is  generally  a  condition  added,  that  if  the 
obligor  does  some  particular  act,  the  obligation  shall  be  void, 
or  else  shall  remain  in  full  force;  as  payment  of  rent,  per- 
formance of  covenants  in  a  deed,  or  repayment  of  a  principal 
sum  of  money  borrowed  of  the  obligee  with  interest,  which 
principal  sum  is  usually  one  half  of  the  penal  sum  specified 
in  the  bond.  In  case  this  condition  is  not  performed,  the 
bond  becomes  forfeited,  or  absolute  at  law,  and  charges  the 

2.  This  sort  of  a  conveyance  would  has  become  obsolete.  See  Hopkins, 
undoubtedly  be  efficient  to  pass  title      Real  Prop.,  411. 

at  the  present  time;  but  as  it  requires  3.  A  simple  obligation, 

the  execution  of  two   instruments,  it 


308  Or  Alienation  by  Deed.  [Rook  II. 

obligor  while  living;  and  after  his  death  the  obligation  de- 
scends upon  his  heir,  who  (on  defect  of  personal  assets)  is 
bound  to  discharge  it,  provided  he  has  real  assets,  by  descent 
as  a  recompense.  So  that  it  may  be  called,  though  not  a 
direct,  yet  a  collateral  charge  upon  the  lands.  How  it  affects 
the  personal  property  of  the  obligor  will  be  more  properly 
considered  hereafter. 

If  the  condition  of  a  bond  be  impossible  at  the  time  of 
making  it,  or  be  to  do  a  thing  contrary  to  some  rule  of  law 
that  is  merely  positive,  or  be  uncertain  or 'insensible,  the 
condition  alone  is  void,  and  the  bond  shall  stand  single  and 
unconditional;  for  it  is  the  folly  of  the  obligor  to  enter  into 
such  an  obligation,  from  which  he  can  never  be  released. 
If  it  be  to  do  a  thing  that  is  malum  in  se,^  the  obligation 
itself  is  void;  for  the  whole  is  an  unlawful  contract,  and 
the  obligee  shall  take  no  advantage  from  such  a  transaction. 
And  if  the  condition  be  possible  at  the  time  of  making  it, 
and  afterwards  becomes  impossible  by  the  act  of  God,  the 
act  of  law,  or  the  act  of  the  obligee  himself,  there  the 
penalty  of  the  obligation  is  saved;  for  no  prudence  or  fore- 
sight of  the  obligor  could  guard  against  such  a  contingency. 
[341]  On  the  forfeiture  of  a  bond,  or  its  becoming  single, 
the  whole  penalty  was  formerly  recoverable  at  law;  but  here 
the  courts  of  equity  interposed,  and  would  not  permit  a 
man  to  take  more  than  in  conscience  he  ought,  viz.,  liis 
principal,  interest,  and  expenses,  in  case  the  forfeiture' 
accrued  by  non-payment  of  money  borro^ved,  the  damages 
sustained  upon  non-performance  of  covenants,  and  the  lik:\ 
And  the  like  practice  having  gained  some  footing  in  tho 
courts  of  law%  the  statute  4  &  5  Anne,  c.  16,  at  length  en- 
acted, in  the  same  spirit  of  equity,  that,  in  case  of  a  bond 
conditioned  for  the  payment  of  money,  the  payment  or 
tender  of  the  principal  sum  due,  with  interest  and  costs, 
even  though  the  bond  be  forfeited  and  a  suit  commenced 
thereon,  shall  be  a  full  satisfaction  and  discharge.^' 

2.  A  recognizance  is  an  obligation  of  record,  which  a  man 

4.  Bad  in  itself.  ment  of  money  but  for  manifold  other 

5.  Bond?  are  in  common  use  in  this  lawful  purposes.  They  may  be  exe- 
country   not  only  to  secure  the  pay-      cutcd  not  only  by  individuals,  but  are 


CiiAP.  XX.]  Of  Alienation  by  Deed.  309 

-enters  into  before  some  court  of  record  or  magistrate  duly 
authorized,  with  condition  to  do  some  particular  act,  as  to 
appear  at  the  assizes,  to  keep  the  peace,  to  pay  a  debt,  or 
the  like.  It  is  in  most  respects  like  another  bond,  the  differ- 
ence being  chiefly  this:  that  the  bond  is  the  creation  of  a 
fresh  debt  or  obligation  de  novo;^  the  recognizance  is  an 
acknowledgment  of  a  former  debt '  upon  record,  the  form 
whereof  is'  *  that  A  B  doth  acknowledge  to  owe  to  our  lord 
the  king,  to  the  plaintiff,  to  C.  D,  or  the.like,  the  sura  of  ten 
pounds,"  which  condition  to  be  void  on  performance  of  the 
tiling  stipulated;  in  which  case  the  king,  the  plaintiff,  C  D, 
&c.,  is  called  the  recognizee,  '^  is  cut  cognoscitur,''"'  as  he  that 
enters  into  the  recognizance  is  called  the  cognizor,  ^'  is  qui 
cofinoscit/'^  This,  being  either  certified  to  or  taken  by  the 
officer  of  some  court,  is  witnessed  only  by  the  record  of  that 
court,  and  not  by  the  party's  seal,  so  that  it  is  not  in  strict 
propriety  a  deed,  though  the  effects  of  it  are  greater  than 
a  common  obligation,  being  allowed  a  priority  in  point  of 
payment,  and  binding  the  lands  of  the  cognizor  from  the 
time  of  enrolment  on  record.^  [342] 

There  are  also  other  recognizances,  of  a  private  kind,  in  nature  of  a 
statute  staple,  by  virtue  of  the  statute  23  Hen.  VIII.  c.  6,  which  have  been 
already  explained,  and  shown  to  be  a  charge  upon  real  property. 

3.  A  defeasance  on  a  bond  or  recognizance,  or  judgment 
recovered,  is  a  condition  which,  when  performed,  defeats 

also  a  common  means  of  securing  cor-  cree),  takes   place  of  a   recognizance, 

porate    debts.      The    literature    upon  (Littleton  v.  Hibbins.  Cro.  Eliz.  793; 

tills  subject   is  voluminous.     See  the  Searle  v.   Lane,  2   Freem.   104:    s.  c, 

title  Bonds,  Municipal  Bonds,  etc.,  in  2  Vern.  89;   Perry  v.  Plielps,  10  Ves. 

Bender's  Law  Catalogue  (1914).  34.)        Between     decrees     and     judg- 

6.  From  the  beginning  or  anew.  raents,   the  right  to   priority  of   pay- 

7.  He  to  whom  it  is  acknowledged,  ment  is  determined  by  their  real  pri- 

8.  He  who  acknowledgrs.  ority  of  date,  without   regard  to  the 

9.  Signing  is  unnecessary  at  com-  legal  fiction  of  relation  to  the  first 
mon  law.  A  recognizance  has  priority  day  of  Term.  (Darston  v.  Earl  of 
in  ]x»int  of  payment,  over  a  common  Oxford,  3  P.  Wms.  401,  n.;  Joseph  v. 
obligation;  but  a  judgment,  or  decree  Mott,  Prec.  in  Cha.  79;  Morrice  v. 
(not   being   a   mere   interlocutory   de-  Bank  of  England,  3  Swanst.  577.) 


310  Of  Alienation  by  Deed.  [Book  IT. 

or  undoes  it,  in  the  same  mariner  as  a  defeasance  of  an 
estate  before  mentioned.^  It  differs  only  from  the  common 
condition  of  a  bond  in  that  the  one  is  always  inserted  in" 
the  deed  or  bond  itself,  the  other  is  made  between  the  same 
parties  by  a  separate,  and  frequently  a  subsequent  deed. 
This,  like  the  condition  of  a  bond,  when  performed,  dis- 
charges and  disincumbers  the  estate  of  the  obligor. 

1.  Which  eee. 


CiiAP.  XXI.]        Of  Alienation  by  Eecoed.  311 

-     CHAPTER  XXI. 

OF  ALIENATION  BY  MATTER  OF  RECORD. 

Assurances  by  matter  of  record  are  such  as  do  not  en- 
tirely depend  on  the  act  or  consent  of  this  parties  them- 
selves, but  the  sanction  of  a  court  of  record  is  called  in  to 
substantiate,  preserve,  and  be  a  perpetual  testimony  of  the 
transfer  of  property  from  one  man  to  another,  or  of  its 
establishment  when  already  transferred.  [344]  Of  this 
nature  are,  1.  Private  acts  of  parliament;  2.  The  king's 
grants;  3.  Fines;  4.  Common  recoveries. 

I.  Private  acts  of  parliament  are,  especially  of  late  years, 
become  a  very  common  mode  of  assurance.^ 

For  it  may  sometimes  happen  that,  by  the  ingenuity  of  some  and  the 
blunders  of  other  practitioners,  an  estate  is  most  grievously  entangled 
by  a  multitude  of  contingent  remainders,  resulting  trusts,  springing  uses, 
executory  devises,  and  the  like  artificial  contrivances, — a  confusion  un- 
known to  the  simple  conveyances  of  the  common  law, — so  that  it  is  out 
of  the  power  of  either  the  courts  of  law  or  equity  to  relieve  the  owner. 
Or  it  may  sometimes  happen  that  by  the  strictness  or  omissions  of 
family-settlements  the  tenant  of  the  estate  is  abridged  of  some  reason- 
able power  (as  letting  leases,  making  a  jointure  for  a  wife,  or  the  like), 
which  power  cannot  be  given  him  by  the  ordinary  judges  either  in  com- 
mon law  or  equity.  Or  it  may  be  necessary  in  settling  an  estate  to  se- 
cure it  against  the  claims  of  infants  or  other  persons  under  legal  dis- 
abilities who  are  not  bound  by  any  judgments  or  decrees  of  the  ordinary 
courts  of  justice.  In  these  or  other  cases  of  the  like  kind  the  transcend- 
ent power  of  parliament  is  called  in  to  cut  the  Gordian  knot,  and  by  a 
particular  law,  enacted  for  this  very  purpose,  to  unfetter  an  estate,  to 
give  its  tenant  reasonable  powers,  or  to  assure  it  to  a  purchaser  against 

1.  Not  in  use  in  this  country  as  a  seems  desirable.     See  the  subject  fully 

mere    private    mode    of    conveyance,  considered    in    Cooley's    Const.    Lim. 

though  the  legislature  may,  where  not  (7tli  Ed.),  140-151  and  notes, 

prohibited  by  constituional  provisions,  Statutes   may   convey   public   lands 

interfere   in   special   cases  of   persons  as  in  case  of  grants  in  aid  of  railroads 

under   disability  by   statutes   empow-  and  for  other  public  purposes,  either 

ering  guardians  and  other  trustees  to  directly  or  they'  may  prescribe   rules 

Bell  lands  in  cases  where  the  general  and  regulations  for  passing  the  title 

laws  are  not  applicable  or  do  not  ac-  or  may  authorize  the  issuance  of  pat- 

complish  fully  all  that  in  some  cases  ents  therefor,  etc. 


312  Of  Alienation  BY  Record.  [Book  11. 

the  remote  or  latent  claims  of  infants  or  disabled  persons,  by  settling 
a  proper  equivalent  in  proportion  to  the  interest  so  barred.  [345] 

A  law  thus  made,  though  it  binds  all  parties  to  the  bill,  is  yet  locked 
upon  rather  as  a  private  conveyance  than  as  the  solemn  act  of  the  leg- 
islature. [346]  It  is  not,  therefore,  allowed  to  be  a  public,  but  a  mere 
private  statute;  it  is  not  printed  or  published  among  the  other  laws  of 
the  session;  it  hath  been  relieved  against  when  obtained  upon  fraudulent 
suggestions;  it  hath  been  holden  to  be  void  if  contrary  to  law  and  rea- 
son; and  no  judge  or  jury  is  bound  to  take  notice  of  it  unless  the  same 
be  specially  set  forth  and  pleaded  to  them.  It  remains,  however,  en- 
rolled among  the  public  records  of  the  nation,  to  be  forever  preserved 
as  a  perpetual  testimony  of  the  conveyance  or  assurance  so  made  or 
established. 

II.  The  king's  grants  are  also  matter  of  public  record. 
These  grants,  whether  of  lands,  honors,  liberties,  franchises, 
or  aught  besides,  are  contained  in  charters  or  letters  patent, 
that  is,  open  letters,  literae  patents;  so  called  because  they 
are  not  sealed  up,  but  exposed  to  open  view,  with  the  great 
seal  pendant  at  the  bottom,  and  are  usually  directed  or  ad- 
dressed by  the  king  to  all  his  subjects  at  large.^ 

As  to  the  construction  of  the  king's  grants  when  made. 
1.  A  grant  made  by  the  king  at  the  siiit  of  the  grantee  shall 
be  taken  most  beneficially  for  the  king  and  against  the  party ; 
whereas  the  grant  of  a  subject  is  construed  most  strongly 
against  the  grantor.^  Wherefore  it  is  usual  to  insert  in  the 
king's  grants  that  they  are  made,  not  at  the  suit  of  the 
grantee,  but  ^^ ex  speciali  gratia,  certa  scientia,  et  mero  motii 
regis,"  ^  and  then  they  have  a  more  liberal  construction.  2. 
A  subject 's  grant  shall  be  construed  to  include  many  things 
besides  wiiat  are  expressed,  if  necessary  for  the  operation 
of  the  grant.  Therefore  in  a  private  grant  of  the  profits  of 
land  for  one  year,  free  ingress,  egress,  and  regress,  to  cut 

2.  See  preceding  note.     A  patent  is  See,   generally,   Hopkins,   Real   Prop., 

the  formal  method  of  conveying  pub-  402,  404.     Patents  for  public  lands  of 

lie    land    entered    under    the    United  the  several  states  are  e.xecuted  in  the 

Stales  homestead  and  other  laws  au-  same  manner  but  are  signed  by  the 

thorizing     private     entry     of     public  governor  and  bear  the  state  seal, 

lands.     It  is  signed-  by  the  president  3.  This   is   a   general   rule  of   con- 

of  the  United  Stated  or  by  some  one  struction. 

authorized  to  act  for  him  and  sealed  4.  By  special  favor,  certain  knowl- 

with   the  seal  of  the  United   States,  edge  and  mere  motion  of  the  king. 


Chap.  XXI.]         Of  Alienation  by  Record.  313 

and  carry  away  those  profits,  are  also  inclusively  granted. 
But  the  king's  grant  shall  not  inure  to  any  other  intent 
than  that  which  is  precisely  expressed  in  the  grant.  As, 
if  he  grants  land  to  an  alien,  it  operates  nothing;  for  such 
grant  shall  not  also  inure  to  make  him  a  denizen,  that  so 
he  may  be  capable  of  taking  by  grant.  [348]  3.  When  it 
appears  from  the  face  of  the  grant  that  the  king  is  mistaken 
or  deceived,  either  in  matter  of  fact  or  matter  of  law,  as  in 
case  of  false  suggestion,  misinformation,  or  misrecital  of 
former  grants;  or  if  his  own  title  to  the  thing  granted  be 
different  from  what  he  supposes;  or  if  the  grant  be  in- 
formal; or  if  he  grants  an  estate  contrary  to  the  rules  of 
law,  —  in  any  of  these  cases  the  grant  is  absolutely  void. 
For  instance,  if  the  king  grants  lands  to  one  and  his  heirs 
male,  this  is  merely  voi(^;  for  it  shall  not  be  an  estate-tail, 
because  there  want  words  of  procreation,  to  ascertain  the 
body  out  of  which  the  heirs  shall  issue.  Neither  is  it  a  fee- 
simple,  as  in  common  grant  it  would  be,  because  it  may 
reasonably  be  supposed  that  the  king  meant  to  give  no  more 
than  an  estate-tail;  the  grantee  is  therefore  (if  anything) 
nothing  more  than  tenant  at  will.^ 

III.  A  fine  of  lands  and  tenements. 

1.  A  fine  may  be  described  to  be  an  amicable  composition 
or  agreement  of  a  suit,  either  actual  or  fictitious,  by  leave 
of  the  king  or  his  justices,  whereby  the  lands  in  question 
become,  or  are  acknowledged  to  be,  the  right  of  one  of  the 
parties.  [349]  In  its  original  it  was  founded  on  an  actual 
suit,  commenced  at  law  for  recovery  of  the  possession  of 
land  or  other  hereditament,  and  the  possession  thus  gained 
by  such  composition  was  found  to  be  so  sure  and  effectual 
that  fictitious  actions  were,  and  continue  to  be  every  day 
commenced,  for  the  sake  of  obtaining  the  same  security. 

The  manner  in  which  they  should  he  leripd  or  carried  on  is  as  follows: 
(1)  The  party  to  whom  the  land  is  to  he  conveyed  or  assured  com- 
mences an  action  or  suit  at  law  against  the  other, — generally  an  action 
of  covenant, — by  suing  out  a  writ  of  praecipe,  called  a  writ  of  covenant, 
the  foundation  of  which  is  a  supposed  agreement  or  covenant  that  the 

5.  This  method  of  conveyance  has 
become  entirely  obsolete  in  the  United 
States.     See  Hopkins,  Real  Prop.,  51. 


314  Of  Alienation  by  Record.  [Book  II. 

one  shall  convey  the  lands  to  the  other,  on  the  breach  of  which  agree- 
ment the  action  is  brought.  [350]  The  suit  being  thus  commenced,  then 
follows, 

(2)  The  licentla  concordandl,  or  leave  to  agree  the  suit.  For  as  soon 
as  the  action  is  brought,  the  defendant,  knowing  himself  to  be  in  the 
wrong,  is  supposed  to  make  overtures  of  peace  and  accommodation  to 
ihe  plaintiff,  who,  accepting  them,  but  having,  upon  suing  out  the  writ, 
given  pledges  to  prosecute  his  suit,  which  he  endangers  if  he  now  de- 
serts it  without  license,  he  therefore  applies  to  the  court  for  leave  to 
make  the  matter  up. 

(3)  Next  comes  the  concord,  or  agreement  itself,  after  leave  obtained 
from  the  court,  which  is  usually  an  acknowledgment  from  the  deforciants, 
or  those  who  keep  the  other  out  of  possession,  that  the  lands  in  ques- 
tion are  the  right  of  the  complainant.  And  from  this  acknowledgment  or 
recognition  of  right  the  party  levying  the  fine  is  called  the  cognizor,  and 
he  to  whom  it  is  levied  the  cognizee.  [351]  This  acknowledgment  must 
be  made  either  openly  in  the  Court  of  Common  Pleas  or  before  the  Lord 
Chief  Justice  of  that  court,  or  else  before  one  of  the  judges  of  that 
court,  or  two  or  more  commissioners  in  the  country,  empowered  by  a 
special  authority  called  a  writ  of  dedimus  potestatemfi  which  judges  and 
commissioners  are  bound  by  statute,  18  Edw.  I.  st.  4,  to  take  care  that 
the  cognizors  be  of  full  age,  sound  memory,  and  out  of  prison.  If  there 
be  any  feme-covert  among  the  cognizors,  she  is  privately  examined 
whether  she  does  it  willingly  and  freely,  or  by  compulsion  of  her  hus- 
band. 

By  these  acts  all  the  essential  parts  of  a  fine  are  completed,  and  if  the 
cognizor  dies  the  next  moment  after  the  fine  is  acknowledged,  provided 
It  be  subsequent  to  the  day  on  which  the  writ  is  made  returnable,  still 
the  fine  shall  be  carried  on  in  all  its  remaining  parts;  of  which  the  next  is 

(4)  The  note  of  the  fine,  which  is  only  an  abstract  of  the  writ  of  cov- 
enant, and  the  concord,  naming  the  parties,  the  parcels  of  land,  and  the 
agreement.  This  must  be  enrolled  of  record  in  the  proper  office,  by 
direction  of  the  statute  5  Hen.  IV.  c.  14. 

(5)  The  fifth  part  is  the  foot  of  the  fine,  or  conclusion  of  it,  which 
includes  the  whole  matter,  reciting  the  parties,  day,  year,  and  place, 
and  before  whom  it  was  ackncfvvledged  or  levied.  Of  this  there  are  in- 
dentures made  or  engrossed  at  the  chirographer's  office,  and  delivered 
to  the  cognizor  and  the  cognizee,  usually  beginning  thus,  "  haec  est  finalis 
Concordia,  this  is  the  final  agreement,"  and  then  reciting  the  whole  pro- 
ceeding at  length.    And  thus  the  fine  is  completely  levied  at  common  law. 

2.  Fines  thus  levied  are  of  four  kinds:  1.  What  in  our  law  French  is 
called  a  fine  "  snr  cognizance  de  droit,  come  ceo  que  il  ad  de  son  done,** 
or  a  fine  upon  acknowledgment  of  the  right  of  the  cognizee,  as  that 
which  he  hath  of  the  gift  of  the  cognizor.-  [352]  2.  A  fine  "  sur  cogni- 
zance de  droit  tantumj**  or  upon  acknowledgment  of  the  right  merely, — 

6.  We  give  the  authority. 


Chap.  XXL]        Of  Alienatiox  by  Eecokd.  315 

not  with  the  circumstance  of  a  preceding  gift  from  the  cognizor.  .This 
is  commonly  used  to  pass  a  reversionary  interest,  which  is  in  the  cog- 
nizor. [353]  3.  A  fine  "sur  concessit  "^  is  where  the  cognizor,  in  order 
to  make  an  end  of  disputes,  though  he  acknowledges  no  precedent  right, 
yet  grants  to  the  cognizee  an  estate  de  novo,  usually  for  life  or  years, 
by  way  of  supposed  composition.  4.  A  fine  "  sur  done,  grant,  et  render," 
is  a  double  fine,  comprehending  the  fine  sur  cognizance  de  droit  come  ceo, 
&c.,  and  the  fine  sur  concessit,  and  may  be  used  to  create  particular 
limitations  of  estate;  whereas  the  fine  sur  cognizance  de  droit  come  ceo, 
&c.,  conveys  nothing  but  an  absolute  estate,  either  of  inheritance  or  at 
least  of  freehold. 

3.  We  are  next  to  consider  the  force  and  effect  of  a  fine.  These  prin- 
cipally depend,  at  this  day,  on  the  common  law  and  the  two  statutes, 
4  Hen.  VII.  c.  24,  and  32  Hen.  VIII.  c.  36.  The  ancient  common  law  with 
respect  to  this  point  is  very  forcibly  declared  by  the  statute,  18  Edw. 
I.,  in  these  words:  [354]  "And  the  reason  why  such  solemnity  is  re- 
quired in  the  passing  of  a  fine  is  this:  because  the  fine  is  so  high  a  bar, 
and  of  so  great  force,  and  of  a  nature  so  powerful  in  itself,  that  it  pre- 
cludes not  only  those  which  are  parties  and  privies  to  the  fine,  and 
their  heirs,  but  all  other  persons  in  the  world  who  are  of  full  age,  out 
of  prison,  of  sound  memory,  and  within  the  four  seas  the  day  of  the 
fine  levied,  unless  they  put  in  their  claim  on  the  foot  of  the  fine  within 
a  year  and  a  day;"  [which  by  the  statute  of  4  Hen.  VII.  c.  24,  was  ex- 
tended to  five  years  after  proclamations  made,  except  as  to]  feme-co- 
verts, infants,  prisoners,  persons  beyond  the  seas,  and  such  as  are  not  of 
whole  mind,  who  have  five  years  allowed  to  them  and  their  heirs  after 
the  death  of  their  husbands,  their  attaining  full  age,  recovering  their 
liberty,  returning  into  England,  or  being  restored  to  their  right  mind. 

The  statute  32  Hen.  VIII.  c.  36,' declares  that  a  fine  levied  by  any  per- 
son of  full  age,  to  whom  or  to  whose  ancestors  lands  have  been  en- 
tailed, shall  be  a  perpetual  bar  to  them  and  their  heirs  claiming  by  force 
of  such  entail,  unless  the  fine  be  levied  by  a  woman  after  the  death  of 
her  husband,  of  lands  which  were,  by  the  gift  of  him  or  his  ancestors, 
assigned  to  her  in  tail  for  her  jointure,  or  unless  it  be  of  lands  entailed 
by  act  of  parliament  or  letters-patent,  and  whereof  the  reversion  be- 
longs to  the  crown.  [355]  From  this  view  of  the  common  law,  regulated 
by  these  statutes,  it  appears  that  a  fine  is  a  solemn  conveyance  on  rec- 
ord from  the  cognizor  to  the  cognizee,  and  that  the  persons  bound  by  a 
fine  are  parties,  privies,  and  strangers. 

The  parties  are  either  the  cognizors  or  cognizees,  and  these  are  im- 
mediately concluded  by  the  fine,  and  barred  of  any  latent  right  they 
might  have,  even  though  under  the  legal  impediment  of  coverture.  And, 
indeed,  as  this  is  almost  the  only  act  that  a  feme-covert,  or  married 
woman,  is   permitted  by  law  to  do   (and  that  because  she  is  privately 

7.  In  the  grant. 


316  Of  Alienation  by  Kecord.  [Book  II. 

examined  as  to  her  voluntary  consent,  which  removes  the  general  sus- 
picion of  compulsion  by  her  husband),  it  is  therefore  the  usual  and  al- 
most the  only  safe  method  whereby  she  can  join  in  the  sale,  settlement, 
or  incumbrance  of  any  estate. 

Privies  to  a  fine  are  such  as  are  any  way  related  to  the  parties  who 
levy  the  fine  and  claim  under  them  by  any  right  of  blood  or  other  right 
of  representation.  Such  as  are  the  heirs  general  of  the  cognizor,  the 
issue  in  tail  since  the  statute  of  Henry  VIII.,  the  vendee,  the  devisee, 
and  all  others  who  must  make  title  by  the  persons  who  levied  the  fine. 

Strangers  to  a  fine  are  all  other  persons  in  the  world,  except  only 
parties  and  privies.  [356]  And  these  are  also  bound  by  a  fine,  unless, 
within  five  years  after  proclamations  made,  they  interpose  their  claim, 
provided  they  are  under  no  legal  impediments,  and  have  then  a  present 
interest  in  the  estate.  The  impediments,  as  hath  before  been  said,  are 
coverture,  infancy,  imprisonment,  insanity,  and  absence  beyond  sea;  and 
persons  who  are  thus  incapacitated  to  prosecute  their  rights  have  five 
years  allowed  them  to  put  in  their  claims  after  such  Impediments  are 
removed.  Persons  also  that  have  not  a  present  but  a  future  interest 
only,  as  those  in  remainder  or  reversion,  have  five  years  allowed  them  to 
claim  in,  from  the  time  that  such  right  accrues.  And  if  within  that 
time  they  neglect  to  claim,  or  (by  the  statute  4  Anne,  c,  16)  if  they  do 
not  bring  an  action  to  try  the  right  within  one  year  after  making  such 
claim,  and  prosecute  the  same  with  effect,  all  persons  whatsoever  are 
barred  of  whatever  right  they  may  have,  by  force  of  the  statute  of 
non-claim. 

But,  in  order  to  make  a  fine  of  any  avail  at  all,  it  is  necessary  that  the 
parties  should  have  some  Interest  or  estate  in  the  lands  to  be  a^ected 
by  it.  Else  it  were  possible  that  two  strangers,  by  a  mere  confederacy, 
might  without  any  risk  defraud  the  owners  by  levying  fines  of  their 
lands;  for  if  the  attempt  be  discovered,  they  can  be  no  sufferers,  but 
must  only  remain  in  statu  quo:^  whereas  if  a  tenant  for  life  levies  a 
fine,  it  is  an  absolute  forfeiture  of  his  estate  to  the  remainder-man  or 
reversioner,  if  claimed  in  proper  time.  It  is  not,  therefore,  to  be  sup- 
posed that  such  tenants  will  frequently  run  so  great  a  hazard;  but  if 
they  do,  and  the  claim  is  not  duly  made  within  five  years  after  their 
respective  terms  expire,  the  estate  is  for  ever  barred  by  it.  Yet  where  a 
stranger,  whose  presumption  cannot  be  thus  punished,  officiously  inter- 
feres in  an  estate  which  in  nowise  belongs  to  him,  his  fine  is  of  no  effect, 
and  may  at  any  time  be  set  aside  (unless  by  such  as  are  parties  or  privies 
thereunto)  by  pleading  that  "  partes  finis  nihit  hahuerunt."  [357]  And 
even  if  a  tenant  for  years,  who  hath  only  a  chattel  interest  and  no  free- 
bold  in  the  land,  levies  a  fine,  it  operates  nothing,  but  is  liable  to  be  de- 
feated by  the  same  plea.  Wherefore,  when  a  lessee  for  years  is  disposed 
10  levy  a  fine,  it  is  usual  for  him  to  make  a  feoffment  first  to  displace 
the  estate  of  the  reversioner,  and  create  a  new  freehold  by  disseisin. 

8.  In  the  same  state  as  before. 


CiFAP.  XXL]        Of  Alienation  by  Record.  317 

IV.  Common  recoveries^  were  invented  by  the  ecclesi- 
astics to  elude  the  statutes  of  mortmain,  and  afterwards, 
encouraged  by  the  finesse  of  the  courts  of  law  in  12  Edw. 
IV.,  in  order  to  put  an  end  to  all  fettered  inheritances,  and 
bar  not  only  estates-tail,  but  also  all  remainders  and  re- 
versions expectant  thereon. 

1.  A  common  recovery  is  so  far  like  a  fine  that  it  is  a 
suit  or  action,  either  act.ual  or  fictitious,  and  in  it  the  lands 
are  recovered  against  the  tenant  of  the  freehold,  —  which 
recovery,  being  a  supposed  adjudication  of  the  right,  binds 
all  persons,  and  vests  a  free  and  absolute  fee-simple  in  the 
recoveror. 

Let  us  suppose  David  Edwards  to  be  tenant  of  the  freehold,  and  de- 
sirous to  suffer  a  common  recovery  in  order  to  bar  all  entails,  remaind- 
ers, and  reversions,  and  to  convey  the  same  in  fee-simple  to  Francis 
Golding.  [358]  To  effect  this,  Golding  is  to  bring  an  action  against  him 
for  the  lands;  and  he  accordingly  sues  out  a  writ  called  a  praecipe  quod 
reddat,i  because  those  were  its  initial  or  most  operative  words  when  the 
law  proceedings  were  in  Latin.  In  this  writ  the  demandant,  Golding, 
alleges  that  the  defendant  Edwards  (here  called  the  tenant)  has  no  legal 
title  to  the  land,  but  that  he  came  into  possession  of  it  after  one  Hugh 
Hunt  had  turned  the  demandant  out  of  it.  The  subsequent  proceedings 
are  made  up  into  a  record  or  recovery  roll,  in  which  the  writ  and  com- 
plaint of  the  demandant  are  first  recited;  whereupon  the  tenant  appears 
and  calls  upon  one  Jacob  Morland,  who  is  supposed  at  the  original  pur- 
chase to  have  warranted  the  title  to  the  tenant,  and  thereupon  he  prays 
that  the  said  Jacob  Morland  may  be  called  in  to  defend  the  title  which  h-? 
so  warranted.  This  is  called  the  voucher,  vocatio,  or  calling  of  Jacob 
Morland  to  warranty,  and  Morland  is  called  the  vouchee.  Upon  this 
Jacob  Morland,  the  vouchee,  appears,  is  impleaded,  and  defends  tha 
title.  Whereupon  Golding,  the  demandant,  desires  leave  of  the  court  to 
imparl,  or  confer  with  the  vouchee  in  private,  which  is   (as  usual)   al- 

9.  See   in    general.    Com.    Dig.    Re-  where    the    nature   and    operation    of 

covery;    Bac.    Ab.    Fines    and   Recov-  common   recoveries   is   stated  and  ex- 

eries;   1  Prest.  on  Conv.,  1  vol.  1  to  plained.     Common   recoveries  are  en- 

200;      Cru.     Dig.     index.     Recovery;  tirely  obsolete  in  the  United  States. 

Cruise     on     Fines     and     Recoveries;  Both    fines    and    common    recoveries 

Fearne's  Con.  Rem.;   Vin.  Ab.  Recov-  have,    however,   so    much   general    in- 

ery;  5  T.  R.  107,  n.;  2  Saund.  42,  n.  terest    to   the    scholarly    lawyer    that 

7,   and   id.   index,   tit.  Recovery;    and  -space   has    been    here   given    to    their 

as  to  pleading  a  recovery,  see  2  Chitty  treatment. 

on  Pleadings    (4th  Ed.),  582   to   586,  1.  Command  him  to  restore. 


318  Op  Alienation  by  Record.  [Book  II. 

lowed  him.  "  And  soon  afterwards  the  demandant,  Golding,  returns  to 
court,  but  Morland,  the  vouchee,  disappears,  or  makes  default.  Where- 
upon judgment  is  given  for  the  demandant,  Golding,  now  called  the  re- 
coveror,  to  recover  the  lands  in  question  against  the  tenant,  Edwards, 
who  is  now  the  recoveree;  and  Edwards  has  judgment  to  recover  of 
Jacob  Morland  lands  of  equal  value,  in  recompense  for  the  lands  so 
warranted  by  him,  and  now  lost  by  his  default,  which  is  agreeable  to 
the  doctrine  of  warranty.  [359]  This  is  called  the  recompense,  or 
recovery  in  value.  But  Jacob  Morland  having  no  lands  of  his  own,  being 
usually  the  crier  of  the  court  (who,  from  being  frequently  thus  vouched, 
is  called  the  common  vouchee),  it  is  plain  that  Edwards  has  only  a  nomi- 
nal recompense  for  the  land  so  recovered  against  him  by  Golding,  which 
lands  are  now  absolutely  vested  in  the  said  recoveror  by  judgment  of 
law,  and  seisin  thereof  is  delivered  .by  the  sheriff  of  the  county.  So  that 
this  collusive  recovery  operates  merely  in  the  nature  of  a  conveyance 
in  fee-simple  from  Edwards,  the  tenant  in  tail,  to  Golding,  the  purchaser. 

The  recovery  here  described  is  with  a  single  voucher  only;  but  some- 
times it  is  with  double,  treble,  or  further  voucher,  as  the  exigency  of  the 
case  may  require.  And  indeed  it  is  now  usual  always  to  have  a  recovery 
with  double  voucher  at  the  least,  by  first  conveying  an  estate  of  free- 
hold to  any  indifferent  person  against  whom  the  praecipe  is  brought,  and 
then  he  vouches  the  tenant  in  tail,  who  vouches  over  the  common  vouchee. 
For  if  a  recovery  be  had  immediately  against  tenant  in  tail,  it  bars  only 
such  estate  in  the  premises  of  which  he  is  then  actually  seised;  whereas 
if  the  recovery  be  had  against  another  person,  and  the  tenant  in  tail 
be  vouched,  it  bars  every  latent  right  and  interest  which  he  may  have 
in  the  lands  recovered.  If  Edwards,  therefore,  be  tenant  of  the  free- 
hold in  possession,  and  John  Barker  be  tenant  in  tail  in  rema'nde', 
herft  Edwards  doth  first  vouch  Barker,  and  then  Barker  vouches  Jacob 
Morland,  the  common  vouchee,  who  is  always  the  last  person  vouched, 
and  always  makes  default;  whereby  the  demandant,  Golding,  recovers 
the  land  against  the  tenant,  Edwards,  and  Edwards  recovers  a  recom- 
pense of  equal  value  against  Barker,  the  first  vouchee,  who  recovers  the 
like  against  Morland,  the  common  vouchee  against  whom  such  ideal 
recovery  in  value  is  alwaj-s  ultimately  awarded. 

This  supposed  recompense  in  value  is  the  reason  why  the  issue  in  ta'l 
is  held  to  be  barred  by  a  common  recovery.  [360]  For  if  the  recoveree 
should  obtain  a  re<^ompense  in  lands  from  the  common  vouchee  (which 
there  is  a  possibility  in  contemplation  of  law,  though  a  very  improbable 
one,  of  his  doing),  these  lands  would  supply  the  place  of  those  so  re- 
covered from  him  by  collusion,  and  would  descend  to  the  issue  in  tail. 
This  reason  will  also  hold  with  equal  force  as  to  most  remainder  men 
End  reversioners,  to  whom  the  possibility  will  remain  and  revert  as  a 
full  recompense  for  the  realty,  which  they  were  otherwise  entitled  to; 
but  it  will  not  ahrays  hold,  and  therefore,  as  Pigot  says,  the  judges  have 
been  even  astuti  in  inventing  other  reasons  to  maintain  the  authority  of 
recovcfies.     And  in  particular  it  hath  been  said  that  though  the  estate- 


CuAv.  XXI.]         Of  Alienation  by  Record.  319 

tail  is  gone  from  the  recoveree,  yet  it  is  not  destroyed,  but  only  transferred, 
and  still  subsists,  and  will  ever  continue  to  subsist  (by  construction  of 
law)  in  thf  recoveror,  his  heirs  and  assigns;  and  as  the  estate-tail  so 
continues  to  subsist  forever,  the  remainders  or  reversions  expectant  on 
the  determination  of  such  an  estate-tail  can  never  take  place. 

2.  The  force  and  effect  of  common  recaveries  may  appear  from  what 
has  been  said  to  be  an  absolute  bar,  not  only  of  all  estates-tail,  but  of 
remainders  and  reversions  expectant  on  the  determination  of  such  es- 
tates. So  that  a  tenant  in  tail  may  by  this  method  of  assurance  convey* 
the  lands  held  in  tail  to  the  recoveror,  his  heirs  and  assigns,  absolutely 
free  and  discharged  of  all  conditions  and  limitations  in  tail  and  of  all 
remainders  and  reversions.  But  by  statute  34  and  35  Hen.  VIII.  c.  20, 
no  recovery  had  against  tenant  in  tail  of  the  king's  gift,  whereof  the  re- 
mainder or  reversion  is  in  the  king,  shall  bar  such  estate-tail,  or  the 
remainder  or  reversion  of  the  crown.  And  by  the  statute  11  Hen.  VII.  c. 
20,  no  woman,  after  her  husband's  death,  shall  suffer  a  recovery  of  lands 
settled  on  her  by  her  husband,  or  settled  on  her  husband  and  her  by 
any  of  his  ancestors.  [362]  And  by  statute  14  Eliz.  c.  8,  no  tenant  for 
life  of  any  sort  can  suffer  a  recovery  so  as  to  bind  them  in  remainder 
or  reversion.  For  which  reason,  if  there  be  tenant  for  life,  with  re- 
mainder in  tail  and  other  remainders  over,  and  the  tenant  for  life  is 
desirous  to  suffer  a  valid  recovery,  either  he  or  the  tenant  to  the  praecipe 
by  him  made  must  vouch  the  remainder-man  in  tail,  otherwise  the  re- 
covery is  void.  But  if  he  does  vouch  such  remainder-man,  and  he  ap- 
pears and  vouches  the  common  vouchee,  it  is  then  good;  for  if  a  man  be 
vouched  and  appears  and  suffers  the  recovery  to  be  had  against  the  ten- 
ant to  the  praecipe,  it  is  as  effectual  to  bar  the  estate-tail  as  if  he  him- 
self were  the  recoveree. 

In  all  recoveries  it  is  necessary  that  the  recoveree  or  tenant  to  the 
r)raecipe,  as  he  is  usually  called,  be  actually  seised  of  the  freehold,  else 
the  recovery  is  void;  for  all  actions  to  recover  the  seisin  of  lands  must 
be  brought  against  the  actual  tenant  of  the  freehold,  else  the  suit  will 
lose  its  effect,  since  the  freehold  cannot  be  recovered  of  him  who  has 
it  not. 

Before  I  conclude  this  head,  I  must  add  a  word  concerning  deeds  to 
lead  or  to  declare  the  use  of  fines  and  of  recoveries.  [363]  For  if  they 
be  levied  or  suffered  without  any  good  consideration,  and  without  any 
uses  declared,  they,  like  other  conveyances,  inure  only  to  the  use  of  him 
who  levies  or  suffers  them.  If  these  deeds  are  made  previous  to  the 
fine  or  recovery,  they  are  called  deeds  to  leod  the  uses;  if  subsequent, 
deeds  to  declare  them.  As  if  A,  tenant  in  tail,  with  reversion  to  himself 
in  fee,  would  settle  his  estate  on  B  for  life,  remainder  to  C  in  tail,  re- 
mainder to  D  in  fee,  that  is  what  by  law  he  has  no  power  of  doing  effectu- 
ally while  his  own  estate-tail  is  in  being.  He  therefore  usually,  after 
making  the  settlement  proposed,  covenants  to  levy  a  fine,  or,  if  there 
be  any  intermediate  remainders,  to  suffer  a  recovery,  to  E,  and  d'rects 
that  the  same  shall  inure  to  the  uses  in  such  settlement  mentioned.    This 


320  Of  Alienation  by  Record.  [Book  IT. 

Is  now  a  deed  to  lead  the  uses  of  the  fine  or  recovery,  and  the  fine  when 
levied,  or  recovery  when  suffered,  shall  inure  to  the  uses  so  specifiel. 
and  no  other.  For  though  E,  the  cognizee  or  recoverer,  hath  ^  fee  simple 
vested  in  himself  by  the  fine  or  recovery,  yet  by  the  operation  of  this 
deed  he  becomes  a  mere  instrument  or  conduit-pipe,  seised  only  to  the  use 
of  B,  C,  and  D  in  successive  order,  which  use  is  executed  immediately 
by  force  of  the  statute  of  uses.  [364]  Or  if  a  fine  or  recovery  be  had 
without  any  previous  settlement,  and  a  deed  be  afterwards  made  between 
the  parties,  declaring  the  uses  to  which  the  same  shall  be  applied,  this 
will  be  equally  good  as  if  it  had  been  expressly  levied  or  suffered  in  con- 
sequence of  a  deed  directing  its  operation  to  those  particular  uses.  For 
by  statute  4  and  5  Anne,  c.  16,  indentures  to  declare  the  uses  of  fines  and 
recoveries,  made  after  the  fines  and  recoveries  had  and  suffered,  shall 
be  good  and  effectual  in  law,  and  the  fine  and  recovery  shall  inure  to 
such  uses  and  be  esteemed  to  be  only  in  trust,  notwithstanding  any 
doubts  that  had  arisen  on  the  statute  of  frauds,  29  Car.  II.  c.  3,  to  the 
contrary. 


Chap.  XXII.]     Of  Alienation  by  Special  Custom.  321 


CHAPTER  XXII. 

OF  ALIENATION  BY  SPECIAL  CUSTOM.* 

We  are  next  to  consider  assurances  by  special  custom,  obtaining  only 
in  particular  places,  and  relative  only  to  a  particular  species  of  real 
property.  [365]  This,  therefore,  is  a  very  narrow  title,  being  confined  to 
copyhold  lands  and  such  customary  estates  as  are  holden  in  ancient  de- 
mesnes or  in  manors  of  a  similar  nature,  which  being  of  a  very  peculiar 
kind,  and  originally  no  more  than  tenancies  in  pure  or  privileged  villen- 
age,  were  never  alienable  by  deed,  for  as  that  might  tend  to  defeat  the 
lord  of  his  seigniory,  it  is  therefore  a  forfeiture  of  a  copyhold.  Nor  are 
they  transferable  by  matter  of  record,  even  in  the  king's  courts,  but  only 
in  the  court  baron  of  the  lord.  The  method  of  doing  this  is  generally  by 
surrender,  though  in  some  manors,  by  special  custom,  recoveries  may  be 
suffered  of  copyholds;  but  these  differing  in  nothing  material  from  re-, 
•coveries  of  free  land,  save  only  that  they  are  not  suffered  in  the  kins'a 
courts,  but  in  the  court  baron  of  the  manor,  I  shall  confine  myself  to 
conveyances  by  surrender  and  their  consequences. 

Surrender,  sursumredditio,  is  the  yielding  up  of  the  estate  by  the  tenant 
into  the  hands  of  the  lord  for  such  purposes  as  in  the  surrender  are  ex- 
pressed: as,  it  may  be,  to  the  use  and  behoof  of  A  and  his  heirs;  to  the 
use  of  his  own  will;  and  the  like.  The  process  in  most  manors  is  that 
the  tenant  comes  to  the  steward,  either  in  court  or,  if  the  custom  per- 
mits, out  of  court,  or  else  to  two  customary  tenants  of  the  same  manor, 
provided  there  be  also  a  custom  to  warrant  it,  and  there,  by  delivering 
up  a  rod,  a  glove,  or  other  symbol,  as  the  custom  directs,  resigns  into 
the  hands  of  the  lord,  by  the  hands  and  acceptance  of  his  said  steward, 
or  of  the  said  two  tenants,  all  his  interest  and  title  to  the  estate,  in 
trust  to  be  again  granted  out  by  the  lord  to  such  persons  and  for  such 
uses  as  are  named  in  the  surrender  and  the  custom  of  the  manor  will 
warrant.  [366]  If  the  surrender  be  made  out  of  court,  then  at  the  next 
or  some  subsequent  court  the  jury  or  homage  must  present  and  find  it 
upon  their  oaths,  which  presentment  is  an  information  to  the  lord  or  his 
steward  of  what  has  been  transacted  out  of  court.  Immediately  upon  such 
surrender  in  court,  or  upon  presentment  of  a  surrender  made  out  of 
<;ourt,  the  lord  by  his  steward  grants  the  same  land  again  to  cestuy  que 

1.  Although  we  have  no  copyliold  liold;  1  Prest.  on  Conv.  index,  Copy- 
lands  in  tliis  country  and  therefore  hold;  Watlcins  on  Copyhold,  and 
this  chapter  has  no  application  here,  Scriven  on  Copyhold;  2  Saund.  in- 
still its  historical  value  warrants  its  dex,  tit.  Copyhold,  and  tit.  Surren- 
preservation  in  finer  type.  See  in  ders;  and  1  Thomas  Co.  Lit.  653  to 
general,  Com.  Dig.:  Bac.  Ab.;  Vin.  676. 
Ab.  Copyhold;   Cru.  Dig.  index,  Copy- 

21  ■  ,'■'-•,:>.•■; 


322  Of  Alienation  by  Special  Custom.       [Book  IL 

use, — who  is  sometimes,  though  rather  improperly,  called  the  surren- 
deree,— to  hold  by  the  ancient  rents  and  customary  services,  and  there- 
upon admits  him  tenant  to  the  copyhold,  according  to  the  form  and  effect 
of  the  surrender,  which  must  be  exactly  pursued.  And  this  is  done  by 
delivering  up  to  the  new  tenant  the  rod,  or  glove,  or  the  like,  in  the  name 
and  as  the  symbol  of  corporal  seisin  of  the  lands  and  tenements, — upon 
which  admission  he  pays  a  fine  to  the  lord  according  to  the  custom  of 
the  manor,  and  takes  the  oath  of  fealty. 

This  method  of  conveyance  is  so  essential  to  the  nature  of  a  copyhold 
estate,  that  it  cannot  properly  be  transferred  by  any  other  assurance. 
No  feoffment  of  grant  has  any  operation  thereupon.  If  I  would  ex- 
change a  copyhold  estate  with  another,  I  cannot  do  it  by  an  ordinary  deed 
of  exchange  at  the  common  law,  but  we  must  surrender  to  each  other's 
use,  and  the  lord  will  admit  us  accordingly.  If  I  would  devise  a  copy- 
hold, I  must  surrender  it  to  the  use  of  my  last  will  and  testament,  and 
in  my  will  I  must  declare  my  intentions  and  name  a  devisee,  who  will 
then  be  entitled  to  admission.  [368]  A  fine  or  recovery  had  of  copyhold 
lands  in  the  king's  court  may,  indeed,  if  not  duly  reversed,  alter  the 
tenure  of  the  lands  and  convert  them  into  frank  fee,  which  is  defined  in 
.^je  old  book  of  tenures  to  be  "land  pleadable  at  the  common  law;"  but 
upon  an  action  on  the  case,  in  the  nature  of  a  writ  of  deceit,  brought  by 
the  lord  in  the  king's  court,  such  fine  or  recovery  will  be  reversed,  the 
lord  will  recover  his  jurisdiction,  and  the  lands  will  be  restored  to  their 
former  state  of  copyhold. 

1.  A  surrender,  by  an  admittance  subsequent  whereto  the  conveyance 
is  to  receive  its  perfection  and  confirmation,  is  rather  a  manifestation 
of  the  alienor's  intention  than  a  transfer  of  any  interest  in  possession. 
For,  till  admittance  of  cestuy  que  use,  the  lord  taketh  notice  of  the  sur- 
renderor as  his  tenant,  and  he  shall  receive  the  profits  of  the  land  to 
his  own  use,  and  shall  discharge  all  services  due  to  the  lord.  Yet  the 
interest  remains  in  him  not  absolutely,  but  sub  modo;  for  he  cannot 
pass  away  the  land  to  any  other,  or  make  it  subject  to  any  other  in- 
cumbrance than  it  was  subject  to  at  the  time  of  the  surrender.  But  no 
manner  of  legal  interest  is  vested  in  the  nominee  before  admittance.  If 
he  enters,  he  is  a  trespasser  and  punishable  in  an  action  of  trespass,  and 
if  he  surrenders  to  the  use  of  another,  such  surrender  is  merely  void, 
and  by  no  matter  ex  post  facto  2  can  be  confirmed.  Yet  though  upon  the 
original  surrender  the  nominee  hath  but  a  poissibility,  it  is,  however, 
such  a  possibility  as  may  whenever  he  pleases  be  reduced  to  a  certainty, 
for  he  cannot  either  by  force  or  fraud  be  deprived  or  deluded  of  th*e 
effects  and  fruits  of  the  surrender.  But  if  the  lord  refuse  to  admit  him, 
he  is  compellable  to  do  it  by  a  bill  in  chancery  or  a  mandamus,^  and  the 
surrender  can  in  no  wise  defeat  his  giant,  his  hands  being  forever  bound 
from  disposing  of  the  land  in  any  other  way,  and  his  mouth  forever 
etopped  from  revoking  or  countermanding  his  own  deliberate  act.   [369] 


2.  Ilaprening  afterwards.  3.  We  command. 


CiiAP.  XXII.]     Of  Alienation  by  Special  Custom.  323 

2.  As  to  the  presentment:  that,  by  the  general  custom  of  manors,  is  to 
be  made  at  the  next  court  baron  immediately  after  the  surrender,  but  by 
special  custom  in  some  places  it  will  be  good,  though  made  at  the  second 
or  other  subsequent  court.  And  it  is  to  be  brought  into  court  by  the 
same  persons  that  took  the  surrender,  and  then  to  be  presented  by  the 
homage,  and  in  all  points  material  must  correspond  with  the  true  tenor 
of  the  surrender  itself.  And,  therefore,  if  the  surrender  be  conditional 
and  the  presentment  be  absolute,  both  the  surrender,  presentment,  and 
admittance  thereupon  are  wholly  void, — the  surrender  as  being  never 
truly  presented,  the  presentment  as  being  false,  and  the  admittance  as 
being  founded  on  such  untrue  presentment. 

3.  Admittance  is  the  last  stage  or  perfection  of  copyhold  assurance. 
[370]    And  this  is  of  three  sorts:   first,  as  admittance  upon  a  voluntary 

•grant  from  the  lord;  secondly,  an  admittance  upon  surrender  by  the 
former  tenant;  and  thirdly,  an  admittance  upon  a  descent  from  the  an- 
cestor. 

In  admittances,  even  upon  a  voluntary  grant  from  the  lord,  when  copy- 
hold lands  have  escheated  or  reverted  to  him,  the  lord  is  considered  as 
an  instrument.  For  though  it  is  in  his  power  to  keep  the  lands  in  his 
own  hands,  or  to  dispose  of  them  at  his  pleasure  by  granting  an  absolute 
fee-simple,  a  freehold,  or  a  chattel  interest  therein,  and  quite  to  change 
their  nature  from  copyhold  to  socage  tenure,  so  that  he  may  well  be 
reputed  their  absolute  owner  and  lord,  yet  if  he  will  still  continue  to 
dispose  of  them  as  copyhold,  he  is  bound  to  observe  the  ancient  custom 
precisely 'in  every  point,  and  can  neither  in  tenure  nor  estate  introduce 
any  kind  of  alteration,  for  that  were  to  create  a  new  copyhold;  where- 
fore in  this  respect  the  law  accounts  him  custom's  instrument. 

In  admittances  upon  surrender  of  another,  the  lord  is  to  no  intent  re- 
puted as  owner,  but  wholly  as  an  instrument,  and  the  tenant  admitted 
shall  likewise  be  subject  to  no  charges  or  incumbrances  of  the  lord; 
JOT  nis  claim  to  the  estate  is  solely  under  him  that  made  the  surrender. 

And  as  in  admittances  upon  surrender,  so  in  admittances  upon  descents, 
by  the  death  of  the  ancestor  the  lord  is  used  as  a  mere  instrument,  and 
as  no  manner  of  interest  passes  into  him  by  the  surrender  or  the  death 
of  his  tenant,  so  no  interest  passes  out  of  him  by  the  act  of  admittance. 
[371]  And  therefore  neither  in  the  one  case  nor  the  other  is  any  respect 
had  to  the  quantity  or  quality  of  the  lord's  estate  in  the  manor.  For 
whether  he  be  tenant  in  fee  or  for  years,  whether  he  be  in  possession  by 
right  or  by  wrong,  it  is  not  material,  since  the  admittances  made  by  him 
shall  not  be  impeached  on  account  of  his  title,  because  they  are  judicial, 
or  rather  ministerial  acts,  which  every  lord  in  possession  is  bound  to 
perform. 

Admittances,  however,  upon  surrender  differ  from  admittances  upon 
descent  in  this,  that  by  surrender  nothing  is  vested  in  cestui/  que  use 
before  admittance,  no  more  than  in  voluntary  admittances;  but  upon 
dissent  the  heir  is  tenant  by   copy  immediately   upon   the   death  of  his 


324     *'''\j     Of  Alienation"  BY  Special  Custom.       [Book  II. 

ancestor, — not  indeed  to  all  intents  and  purposes,  for  he  cannot  be  swora 
on  the  homage  nor  maintain  an  action  in  the  lord's  court  as  tenant: 
but  to  most  intents  the  law  taketh  notice  of  him  as  of  a  perfect  tenant 
of  the  land  instantly  upon  the  death  of  his  ancestor,  especially  where  he 
is  concerned  with  any  stranger.  He  may  enter  into  the  land  before  ad- 
mittance; may  take  the  profits;  may  punish  any  trespass  done  upon  the 
ground, — nay,  upon  satisfying  the  lord  for  his  fine  due  upon  the  descent, 
may  surrender  into  the  hands  of  the  lord  to  whatever  use  he  pleases. 
By  the  custom  of  every  manor,  however,  either  upon  pain  of  forfeiture 
of  their  copyhold  or  of  incurring  some  great  penalty,  the  heirs  of  copy- 
holders are  enforced  to  come  into  court  and  be  admitted  according  to  the 
custom,  within  a  short  time  after  notice  giveu  of  their  ancestor's  de- 
cease. [372] 


CiiAr.  XXIII.]     Of  Alienation  by  Devise.  325 

• 

CHAPTEE  XXIII. 

OF  alienation  by  devise. 

The  last  method  of  conveying  real  property  is  by  devise, 
or  disposition  contained  in  a  man's  last  will  and  testament.^ 

[373] 

It  seems  sufficiently  clear  that  before  the  Conquest  lands 
were  devisable  by  will.  But  upon  the  introduction  of  the 
military  tenures,  the  restraint  of  devising  lands  naturally 
took  place  as  a  branch  of  the  feodal  doctrine  of  non-aliena- 
tion without  the  consent  of  the  lord.  And  by  the  common 
law  of  England  since  the  Conquest,  no  estate  greater  than 
for  term  of  years  could  be  disposed  of  by  testament,  except 
only  in  Kent  and  in  some  ancient  burghs,  and  a  few  par- 
ticular manors  where  the  Saxon  immunities  by  special  in- 
dulgence subsisted.  [374]  And  though  the  feodal  restraint 
on  alienations  by  deed  vanished  very  early,  yet  this  on  wills 
continued  for  some  centuries  after,  from  an  apprehension  of 
infirmity  and  imposition  on  the  testator  in  extremis,  which 
made  such  devises  suspicious.  [375] 

But  when  ecclesiastical  ingenuity  had  invented  the  doc- 
trine of  uses  as  a  thing  distinct  from  the  land,  uses  began  to 
be  devised  very  frequently,  and  the  devisee  of  the  use  could 
in  chancery  compel  its  execution.  But  when  the  statute  of 
uses  had  annexed  the  possession  to  the  use,  these  uses,  being 
now  the  very  land  itself,  became  no  longer  devisable;  which 
might  have  occasioned  a  great  revolution  in  the  law  of  devises, 
had  not  the  statute  of  wills  been  made  about  five  years  after, 
viz.,  32  Hen.  VIII.  c.  1,  explained  by  34  Hen.  VIII.  c.  5,  which 
enacted  that  all  persons  being  seised  in  fee-simple  (excex)t 
feme-coverts,^  infant.s,  idiotw,  and  persons  of  non-sane  mem- 
ory) might  by  will  and  testament  in  writing  devise  to  any 
other  person,  except  to  bodies  corporate,  two  thirds  of  their 
lands,  tenements,  and  hereditaments,  held  in  chivalry,  and 

1.  For  definitions,   see  Schouler  on  2.  This  disability  has  been  removed 

Wills  &  Administration,  introductory      by  statute  in  some  of  the  states.   Con- 
chapter,  1-3.  suit  the  local  statutes. 


326  Of  Alienation  by  Devise  [Book  TT. 

the  whole  of  those  held  in  socage;  which  now,  through  the 
alteration  of  tenures  by  the  statute  of  Charles  II.,  amgunts 
to  the  whole  of  their  landed  property  except  their  copyhold 
tenements. 

Corporations  were  excepted  in  these  statutes  to  prevent 
the  extension  of  gifts  in  mortmain ;  but  now,  by  construction 
of  the  statute  43  Eliz.  c.  4,  it  is  held  that  a  devise  to  a  cor- 
poration for  a  charitable  use  is  valid,  as  operating  in  the 
nature  of  an  appointment  rather  than  of  a  bequest.   [376] 

With  regard  to  devises  in  general,  experience  soon 
showed  how  difficult  and  hazardous  a  thing  it  is,  even  in 
matters  of  public  utility,  to  depart  from  the  rules  of  the 
common  law.  Innumerable  frauds  and  perjuries  were 
quickly  introduced  by  this  parliamentary  method  of  in- 
heritance; for  so  loose  was  the  construction  made  upon  this 
act  by  the  courts  of  law,  that  bare  notes  in  the  handwriting 
of  another  person  were  allowed  to  be  good  wills  within  the 
statute.  To  remedy  which  the  statute  of  frauds  and  per- 
juries, 29  Car.  II.  c.  3,^  directs  that  all  devises  of  lands  and 
tenements  shall  not  only  be  in  writing  [printing  will  suffice], 
but  signed^  by  the  testator  or  some  other  person  in  his 
presence  and  by  his  express  direction,^  and  be  subscribed 
in  his  presence  by  three  or  four  credible  witnesses.^"^  And 
a  solemnity  nearly  similar  is  requisite  for  revoking  a  devise 
by  writing,  though  the  same  may  be  also  revoked  by  burn- 
ing, cancelling,  tearing,  or  obliterating  thereof  by  the  de- 
visor,'' or  in  his  presence  and  with  his  consent;  as  likewise 

3.  This    statute    has    furnished    a      is   a   sufficient   signing.      Schouler   on 
model  which  has  been  followed  more      Wills,  146,   150  and  notes. 

or    less    closely    in    probably    all    the  5.  The   legal   effect   of    this    is    the 

states.      The   same    formalities,    as   a  same    as    if   written    by   the   testator 

rule,  are  required  in  a  testament   of  himself.     Scliouler  on  Wills,   148. 

chattels  in  this  country  as  in  the  case  No  seal  is  required  in   the  absence 

of  devises  of  land  and  tenements.  of  a  special  statute  requiring  a  seal. 

4.  Some  of  the  statutes  require  the  5a.  In  this  country  some  of  the 
will  to  be  subscribed,  that  is,  signed  states  require  only  two  witnessis. 
at  the  end  of  the  will.  Whatever  the  Consult  the  local  statutes, 
provisions  it  is  good  practice  to  have  6.  Provided  it  is  done  with  the  in- 
the  testator  attach  his  signature  to  tention  to  revoke  the  will.  Schouler 
every  page  of  the  will  as  well  as  at  on  Wills,  188-198  and  notes. 

the  end.     Signature  by  mark  or  cross 


CiiAP.  XXIIL]     Of  Aliexatiox  by  Devise.  327 

impliedly,  by  such  a  great  and  entire  alteration  in  the  cir- 
cumstances and  situation  of  the  devisor  as  arises  from  marr 
riage  and  the  birth  of  a  childJ 

In  the  construction  of  this  last  statute,  it  has  been  ad- 
judged that  the  testator's  name  written  with  his  own  hand 
at  the  beginning  of  his  will,  as:  "  I,  John  Mills,  do  make 
this  my  last  will  and  testament:  "  is  a  sufficient  signing, 
witliout  any  name  at  the  bottom,  though  the  other  is  the 
safer  way.^  [377]  It  has  also  been  determined  that,  though 
the  witnesses  must  all  see  the  testator  sign,  or  at  least 
acknowledge  the  signing,  yet  they  may  do  it  at  different 
times.  But  they  must  all  subscribe  their  names  as  wit- 
nesses in  his  presence,  lest  by  any  possibility  they  should 
mistake  the  instrument.''  And  in  one  case,  determined  by 
the  Court  of  King's  Bench,  the  judges  were  extremely  strict 
in  regard  to  the  credibility,  or  rather  the  competency,  of  the 
witnesses,  for  they  would  not  allow  any  legatee,  nor  by 
consequence  a  creditor,  where  the  legacies  and  debts  were 
charged  on  the  real  estate,  to  be  a  competent  witness  to  the 
devise,  as  being  too  deeply  concerned  in  interest  not  to 
wish  the  establishment  of  the  will,  for,  if  it  were  established, 
he  gained  a  security  for  his  legacy  or  debt  from  the  real 
■estate,  whereas  otherwise  he  had  no  claim  but  on  the  per- 
sonal assets.  This  occasioned  the  statute  25  Geo.  II.  c.  6, 
which  restored  both  the  competency  and  the  credit  of  such 
lajutecs,  b}  declaring  void  all  legacies  given  to  witnesses, 

7.  This  rule  has  been  adopted  in  operative  only  after  the  death  of  the 
many  states  though  not  in  all.  See  testator,  a  mistake  in  this  respect 
Scliouler  on  Wills,  206-209  and  notes.  cannot   be  remedied. 

8.  A  different  construction  would  Under  the  statute  of  Car.  2,  puoli- 
prevail  where  the  statute  uses  the  cation  was  not  necessary  and  it  ap- 
word  "subscribed."     See  note,  supra,  pears  to  be  settled  both   in   England 

9.  The  method  of  execution  includ-  and  the  United  States  that  independ- 
ing  the  witnessing  the  testator  sign  ent  of  statutory  provision  requiring 
and  the  number  of  and  the  manner  publication,  a  will  may  be  duly  exe- 
in  which  the  witnesses  shall  attest  cuted  by  a  testator  without  any  fer- 
tile will,  are  all  variously  prescribed  mal  announcement  of  a  testamentary 
by  statute  in  the  several  states.  The  purpose.  Schouler  on  Wills,  154,  15.6, 
provisions  of  the  statute  should  be  157  and  notes;  Jarman  on  Wills  (5th 
fully  complifd  with;  for,  as  a  will  is  Ed.),   p.  *80;   Id.    (6th  Ed.),   p.  *96. 


328  Of  Alienation  by  Devise       "~       [Book  II. 

and  thereby  removing  all  possibility  of  their  interest  affect- 
ing their  testimony.^  The  same  statute  likewise  established 
the  competency  of  creditors,  by  directing  the  testimony  of 
all  such  creditors  to  be  admitted,  but  leaving  their  credit 
(like  that  of  all  other  witnesses)  to  be  considered,  on  a  view 
of  all  the  circumstances,  by  the  court  and  jury  before  whom 
sjich  Avill  shall  be  contested.  [378]  And  in  a  much  later 
case  the  testimony  of  three  witnesses  who  were  creditors  was 
held  to  be  sufficiently  credible,  though  the  land  was  charged 
with  the  payment  of  debts,  and  the  reasons  given  on  the 
former  determination  were  said  to  be  insuflScient. 

Another  inconvenience  was  found  to  attend  this  new 
method  of  conveyance  by  devise,  in  that  creditors  by  bond.^ 
and  other  specialties  which  affected  the  heir,  provided  he 
had  assets  by  descent,  were  now  defrauded  of  their  securities, 
not  having  the  same  remedy  against  the  devisee  of  their 
debtor.  To  obviate  which,  the  statute  3  &  4  W.  &  M.  c.  14, 
hath  provided  that  all  wills  and  testaments,  limitations,, 
dispositions,  and  appointments  of  real  estates,  by  tenants  in 
fee-simple  or  having  power  to  dispose  by  will,  shall  (as 
against  such  creditors  only)  be  deemed  to  be  fraudulent  and 
void,  and  that  such  creditors  may  maintain  their  actions 
jointly  against  both  the  heir  and  the  devisee.^ 

A  will  of  lands  made  by  the  permission  and  under  the 
control  of  these  statutes  is  considered  by  the  courts  of  law 
not  so  much  in  the  nature  of  a  testament  as  of  a  conveyance 
declaring  the  uses  to  which  the  land  shall  be  subject:  with 
this  difference,  that  in  other  conveyances  the  actual  sub- 
scription of  the  witnesses  is  not  required  by  law,  though 
it  is  prudent  for  them  so  to  do,  in  order  to*  assist  their 

1.  As  to  the  competency  of  attest-  2.  In  this  country  the  order  ol  pro- 

ing  witnesses,  see  the  local  statutes,  cedure  in   the  payment   of  debts  and 

In    most   of   the    states   witnesses   to  claims  against  an  estate  is,  as  a  rule, 

wills   are  by   statute   rendered   incap-  definitely   settled  by   statute   whether 

able  of  taking  any  beneficial  interest  the  estate  be  testate  or  intestate,  and 

under   the   will,    unless   there   be   the  the  claims  of  creditors  of  the  deceased, 

statutory   number   of   competent   wit-  whether    by    bond    or    otherwise,    are 

nesses   without   them.       Schouler   on  prior  to  those  of  legatees  and  devisees. 

Wills,   174;    1   Jarman   on  Wills,   71,  Consult  local  statutes. 
Bigelow's  note;  Stim.  Am.  Stat.  Law, 
§  2650. 


Chap.  XXIIL]     Of  Alienation  by  Devise.  329 

memory  when  living,  and  to  supply  their  evidence  when 
dead;  but  in  devises  of  land  such  subscription  is  now  abso- 
lutely necessary  by  statute,  in  order  to  identify  a  convey- 
ance which  in  its  nature  can  never  be  set  up  till  after  the 
death  of  the  devisor.  And  upon  this  notion,  that  a  devise 
affecting  lands  is  merely  a  species  of  conveyance,  is  founded 
this  distinction  between  such  devises  and  testaments  of  per- 
sonal chattels;  that  the  latter  will  operate  upon  whatever 
the  testator  dies  possessed  of,  the  former  only  upon  such 
real  estate  as  were  his  at  the  time  of  executing  and  publish- 
ing his  will.  Wherefore  no  after-purchased  lands  will  pass 
under  such  devise  unless,  subsequent  to  the  purchase  or 
contract,  the  devisor  republishes  his  will.^  [379] 

General  rules  and  maxims  for  the  construction  and  ex- 
position of  common  assurances. 

1.  That  the  construction  be  favorable,  and  as  near  the 
minds  and  apparent  intents  of  the  parties,  as  the  rules  of 
law  will  admit.*  For  the  maxims  of  law  are,  that  ^^  verba 
intentioni  dehent  inservire;^'^  and  "henigne  interpretamut 
chartas,  propter  simplicitatem  laicorum."^  And  therefore 
the  construction  must  also  be  reasonable ,  and  agreeable  to 
common  understanding. 

2.  That  quoties  in  verbis  nulla  est  ambiguitas  ibi  nulla 
cxpositio  contra  verba  fienda  est,^  but  that  where  the  inten- 
tion is  clear,  too  minute  a  stress  be  not  laid  on  the  strict  and 
precise  signification  of  words;  nam  qui  hacret  in  litcra, 
Jiaeret  in  cortice.^  Therefore,  by  a  grant  of  a  remainder  a 
reversion   may   well   pass,   and   e   coiiverso.^     And   another 

3.  In  some  of  the  states  real  prop-  5.  Words  ought  to  serve  the  inten- 
(rty   acquired   after   the  execution   of      tion. 

the   will,   will   pass   by    such   will,   if  6.  We   interpret  deeds   liberally   on 

such   appears   to  be  the   intention   of  account  of  the  simplicity  of  the  laity, 

the  testator.     In  others  the  common  Co.    Litt.,    36a;    Broom's   Leg.    Max., 

law  rule  to  the  contrary  has  been  fol-  *4S. 

lowed      See  Hopkins,  Real  Prop.,  474  7.  When   there  is  no  ambiguity  in 

41  nd   notes;    1   Stim.  Am.   St.   Law,    §  the    words,    there   should   be   no   con- 

2634.                        ■  struction  contrary  to   the  words. 

4.  This  is  the  universal  and  car-  8.  For  whoever  sticks  to  the  letter, 
dinal  rule  of  construction.  Schouler  sticks  to  the  bark.  Co.  Litt.,  233b; 
on  Wills,  228.  Broom's  Leg.  Max.,  *611. 

9.  Conversely. 


330  Of  Alienation  by  Devise  [Book  IT. 

inaxiin  of  law  is,  that  ^^  mala  grammatica  non  vitmt 
vluirtam;  "  ^  neither  false  English  nor  bad  Latin  will  destroy 
a  deed. 

3.  That  the  construction  be  made  upon  the  entire  deed^ 
and  not  merely  upon  disjointed  parts  of  it.  ^'Is^am  ex  antc- 
ccdentibiis  et  consequentihus  fit  optima  interpretation - 
And  therefore  that  every  part  of  it  be  (if  possible)  made  to 
take  effect,  and  no  word  but  what  may  operate  in  some  shape 
or  other.  '^Nam  verba  debent  intelligi  cum  efectu,  ut  re.s- 
magis  valcat  quern  pcreat.^  [380] 

4.  That  the  deed  be  taken  most  strongly  against  him  that 
is  the  agent  or  contractor,  and  in  favor  of  the  other  party. 
'^  Verba  fortius  accipuntur  contra  proferentem/- ^  As,  if 
tenant  in  fee-simple  grants  to  any  one  an  estate  for  life, 
generally  it  shall  be  construed  an  estate  for  the  life  of  the 
grantee.  But  here  a  distinction  must  be  taken  between 
an  indenture  and  a  deed-poll;  for  the  words  of  an  indenture, 
executed  by  both  parties,  are  to  be  considered  as  the  words 
of  them  both;  for,  though  delivered  as  the  words  of  one 
party,  yet  they  are  not  his  words  only,  because  the  other 
party  hath  given  his  consent  to  every  one  of  them.  But  in 
a  deed-poll  executed  only  by  the  grantor,  they  are  the  words 
of  the  grantor  only,  and  shall  be  taken  most  strongly 
against  him.  And  in  general,  this  rule,  being  a  rule  of 
some  strictness  and  rigor,  is  the  last  to  be  resorted  to,  and 
is  never  to  be  relied  upon  but  where  all  other  rules  of  ex- 
position fail. 

5.  That  if  the  words  will  bear  two  senses,  one  agreeable 
to  and  another  against  law,  that  sense  be  preferred  which 
is  most  agreeable  thereto.  As  if  tenant  in  tail  lets  a  lease 
to  have  and  to  hold  during  life  generally,  it  shall  be  con- 
strued to  be  a  lease  for  his  owm  life  only,  for  that  stands 
with  the  law;  and  not  for  the  life  of  the  lessee,  which  is 
beyond  his  power  to  grant. 

1.  Incorrect  grammar  does  not  viti-  with  effect  that  the  matter  may  b? 
ale  a  deed.  suengthened  rather  than  perish. 

2.  The  best  interpretation  is  made  4.  Words  are  to  be  construed  more 
from  both  the  antecedent  and  follow-  strongly  against  the  one  using  them, 
ing  parts.  Co.    Litt.,    36a;    Broom's    Leg.    Max.^ 

3.  Words   ought   to   be    understood  *529. 


CiiAP.  XXIII.]     Of  Alienation  by  Devise. 


331 


6.  That  in  a  deed  if  there  be  two  clauses  so  totally  re- 
pugnant to  each  other  that  they  cannot  stand  together,  the 
first  shall  be  received  and  the  latter  rejected:  wherein  it 
differs  from  a  will ;  for  there,  of  two  such  repugnant  clauses 
the  latter  shall  stand.  [381]  Which  is  owing  to  the  differ- 
ent natures  of  the  two  instruments,  for  the  first  deed  and 
the  last  will  are  ahvays  most  available  in  law/'  Yet  in  both 
cases  we  should  rather  attempt  to  reconcile  them. 

7.  That  a  devise  be  most  favorably  expounded  to  pursue, 
if  possible,  the  will  of  the  devisor,  who  for  want  of  advice 
or  learning  may  have  omitted  the  legal  or  proper  phrases; 
and  therefore  many  times  the  law  dispenses  with  the  want 
of  words  in  devises  that  are  absolutely  requisite  in  all  other 
instruments.''     Thus,  a  fee  may  be  conveyed  without  words 


5.  Such  was  held  to  be  the  law  in 
the  time  of  Lord  Coke.  (See  accord- 
ingly 6  Ves.  102,  5  Ves.  247,  407.) 
But  now  where  the  same  estate  is  de- 
vised to  A.  in  fee,  and  afterwards  to 
B.  in  fee  in  the  same  wiU,  they  are 
construed  to  take  the  estate  as  joint- 
tenants,  or  tenants  in  common,  ac- 
cording to  the  limitations  of  the  es- 
tates and  interests  devised.  3  Atk, 
493;   Ilarg.  Co.  Litt.,   112b,  n.  1. 

6.  In  the  celebrated  case  of  Perrin 
V.  Blake,  Burr.  2579,  the  question  was, 
whtthcr  the  manifest  intention  of  the 
testator  to  give  to  the  first  taker  an 
estate  for  life  only  ought  to  prevail, 
or  that  he  should  have  an  estate-tail 
from  the  construction  which  would 
have  clearly  been  put  upon  the  same 
words  if  they  had  been  used  in  a  deed? 
The  devise  in  substance  was  as  fol- 
loAvs:  The  testator  declarfd,  it  is  my 
intent  and  meaning,  that  none  of  mj' 
children  should  sell  or  dispose  of  my 
estate  for  longer  term  than  his  own 
life;  and  to  that  intent  I  give  my  son 
John  Williams  my  estate  during  his 
natural  life,  remainder  to  my  brother- 
in-law  during  the  life  of  my  son  John 


Williams  (the  design  of  that  being  to 
support  the  contingent  remainder); 
remainder  to  the  heirs  of  the  body  of 
John  Williams.  Lord  IMansfield  and 
two  other  judges  of  the  court  of  king's 
bench  determined,  that  John  Williams 
took  an  estate  for  life  only;  but  upon 
a  writ  of  error  to  the  exchequer-cham- 
ber, the  decision  was  reversed,  and 
six  out  of  eight  of  the  other  judges 
held,  that  John  Williams  took  an  es- 
tate-tail, which  of  consequence  gave 
him  an  absolute  power  of  selling  or 
disposing  of  the  estate  as  he  pleased. 
It  has  since  been  observed  by  a 
learned  judge,  that  as  one  of  the 
judges  held  that  John  Williams  took 
an  estate-tail,  because  he  was  of  opin- 
ion that  such  might  be  presumed  to 
be  the  testator's  intention,  no  argu- 
ment in  future  can  be  drawn  from 
this  case;  because  one-half  of  the 
judges  relied  upon  the  ground  of  in- 
tention alone.  It  is  the  first  and  great 
rule  in  the  exposition  of  wills,  and  to 
which  all  other  rules  must  bend,  that 
the  intention  of  the  testator,  expressed 
in  his  will,  shall  prevail,  provided  it 
be  eonsist<nt  icith  the  rules  of  law; 


332 


Or  Alienation  by  Devise 


[Book  IT. 


of  inheritance,  and  an  estate-tail  without  words  of  pro- 
creation. By  a  will  also  an  estate  may  pass  by  mere  impli- 
cation, without  any  express  words  to  direct  its  course.  As 
where  a  man  devises  lands  to  his  heir  at  law  after  the 
death  of  his  wife :  here,  though  no  estate  is  given  to  the  wife 
in  express  terms,  yet  she  shall  have  an  estate  for  life  by 
implication,  for  the  intent  of  the  testator  is  clearly  to  post- 
pone the  heir  till  after  her  death,  and  if  she  does  not  take 
it,  nobody  else  can.  So  also  where  a  devise  is  of  black-acre 
to  A  and  of  white-acre  to  B  in  tail,  and  if  they  both  die 
without  issue,  then  to  C  in  fee:  here  A  and  B  have  cross- 
remainders  by  implication,  and  on  the  failure  of  cither's  issue 
the  other  or  his  issue  shall  take  the  whole,  and  C's  remainder 
over  shall  be  postponed  till  the  issue  of  both  shall  fail.  And 
in  general,  where  any  implications  are  allowed,  they  must  be 
such  as  are  necessary  (or  at  least  highly  prohahle),  and  not 
merely  possible  implications.  [382]  And  herein  there  is  no 
distinction  between  the  rules  of  law  and  of  equity;  for  the 
will,  being  considered  in  both  courts  in  the  light  of  a  limita- 
tion of  uses,  is  construed  in  each  with  equal  favor  and  be- 
nignity,, and  expounded  rather  on  its  own  particular  circum- 
stances than  by  any  general  rules  of  positive  law. 


that  is,  provided  it  can  be  effectuated 
consistently  with  the  limits  and 
bounds  which  the  law  prescribes.  To 
argue  that  the  intention  shall  be  frus- 
trated by  a  rule  of  construction  of 
certain  words,  is  to  say  that  the  in- 


of  the  very  words  which  the  testator 
lias  adopted  as  the  best  to  communi- 
cate his  intention,  and  of  which  the 
sense  is  intelligible  to  all  mankind. 
See,  also,  Co.  Litt.,  376b,  note  1,  by 
Mr.  Butler;    4  Ves.  Jr.  412;    2  Vea. 


tention  shall  be  defeated  by  the  use      248;  3  Bro.  C.  C.  61. 


CiiAP.  XXIV.]  Of  Things  Peksonal.  333 

CHAPTER  XXIV. 

OF  THINGS  PERSONAL. 

Under  the  name  of  things  personal  are  included  all  sorts 
of  things  movable,  which  may  attend  a  man's  person  wher- 
ever he  goes.  [384] 

But  things  personal  by  our  law  do  not  only  include  things 
movable,  but  also  something  more,  the  whole  of  which  is 
comprehended  under  the  general  name  of  chattels,  which.  Sir 
Edward  Coke  says,  is  a  French  word  signifying  goods.  [385] 
The  appellation  is  in  truth  derived  from  the  technical  Latin 
word  catalla,  which  primarily  signified  only  beasts  of.  hus- 
bandry, or  (as  we  still  call  them)  cattle,  but  in  its  secondary 
sense  was  applied  to  all  movables  in  general.  In  the  Grand 
Coustumier  of  Normandy  a  chattel  is  described  as  a  mere 
movable,  but  at  the  same  time  it  is  set  in  opposition  to  a  fief 
or  feud;  so  that  not  only  goods,  but  whatever  was  not  a 
feud,  were  accounted  chattels.  And  it  is  in  this  latter, 
more  extended,  negative  sense  that  our  law  adopts  it;  the 
idea  of  goods,  or  movables  only,  being  not  sufficiently  com- 
prehensive to  take  in  everything  that  the  law  considers  as 
a  chattel  interest.^  [386]  For  since,  as  the  commentator 
on  the  Coustumier  observes,  there  are  two  requisites  to  make 
a  fief  or  heritage :  duration  as  to  time,  and  immobility  with 
regard  to  place;  whatever  wants  either  of  these  qualities  is 
not,  according  to  the  Normans,  an  heritage,  or  fief ;  or,  accord- 
ing to  us,  is  not  a  real  estate:  the  consequence  of  which  in 
both  laws  is  that  it  must  be  a  personal  estate,  or  chattel. 

Chattels,  therefore,  are  distributed  by  the  law  into  two 
kinds,  chattels  real,  and  chattels  personal. 

1.  Chattels  real  are  such  as  concern,  or  savor  of,  the 
realty,  as  terms  for  years  of  land,  wardships  in  chivalry 
(while  the  military  tenures  subsisted),  the  next  presentation 
to  ai  church,  estates  by  a  statute-merchant,  statute-staple, 
elegit,  or  the  like.^     And  these  are  called  real  chattels,  as 

1.  See   1   Bouvicr  Law   Diet.  Chat-  2.  See  1  Bouvier  Law  Diet.     A  box 

tels;  Co.  Litt.,  118.  with  the  title  deeds  of  land  is  said  to 


331  Of  Things  Personal.  [Book  II. 

being  interests  issuing  out  of  or  annexed  to  real  estates,  of 
which  they  have  one  quality,  viz.,  immobility,  which  denomi- 
nates them  real,  but  want  the  other,  viz.,  a  sufficient  legal, 
indeterminate  duration,  and  this  want  it  is  that  constitutes 
them  chattels.  The  utmost  period  for  which  they  can  last 
is  fixed  and  determinate,  either  for  such  a  space  of  time  cer- 
tain, or  till  such  a  particular  sum  of  money  be  raised  out  of 
such  a  particular  income,  so  that  tliey  are  not  equal  in  the 
eye  of  the  law  to  the  lowest  estate  of  freehold,  a  lease  for 
another's  life;  their  tenants  were  considered,  upon  feodal 
principles,  as  merely  bailiffs  or  farmers,  and  the  tenant  of 
the  freehold  might  at  any  time  have  destroyed  their  interest 
till  the  reign  of  Henry  VIII. 

2.  Chattels  personal  are,  properly  and  strictly  speaking, 
things  movable,  which  may  be  annexed  to  or  attendant  on 
the  person  of  the  owner,  and  carried  about  with  him  from 
one  part  of  the  world  to  another.  [387]  Such  are  animals, 
household  stuff,  money,  jewels,  corn,  garments,  and  every- 
thing else  that  can  properly  be  put  in  motion  and  trans- 
ferred from  place  to  place.^ 

be  a  chattel  real  in  England.     See  1  any    article   is    a    chattel    or   not    is 

IJouvier  Law  Diet.  Chattels;  Co.  Litt.,  whether  on  the  death  of  the  owner  it 

113;  2  Kent  Com.  278;  Ewell  on  Fix-  passes   to  his   administrator   or  exec- 

tures   (2d  Ed.),  *230.  utor;   if  so,  it  is  a  chattel   interest. 

3.  The  real  criterion  as  to  whether 


Chap.  XXV.]     Of  Pkopekty  in  Things  Personal.  335 

CHAPTER  XXV. 

OF  PKOPERTY  IN  THINGS  PERSONAL. 

Property  in  chattels  personal  may  be  either  in  possession, 
which  is  where  a  man  hath  not  only  tlie  right  to  enjoy,  but 
hath  the  actual  enjoyment  of  the  thing,  or  else  it  is  in 
action,  where  a  man  hath  only  a  bare  right  without  any 
occupation  or  enjoj^ment.  [389]  And  of  these  the  former, 
or  property  in  possession,  is  divided  into  two  sorts:  an  abso- 
lute and  a  qiMlified  property. 

I.  Property  in  possession  absolute  is  where  a  man  hath 
solely  and  exclusively  the  right  and  also. the  occupation  of 
any  movable  chattels,  so  that  they  cannot  be  transferred 
from  him,  or  cease  to  be  his,  without  his  own  act  or  default. 
Such  may  be  all  inanimate  things,  as  goods,  plate,  money, 
jewels,  implements  of  war,  gaj'ments,  and  the  like;  such  also 
may  be  all  vegetable  productions,  as  the  fruit  or  other  parts 
of  a  plant  when  severed  from  the  body  of  it,  or  the  whole 
phint  itself  when  severed  from  the  ground. 

Animals  are  distinguished  into  such  as  are  domitae  and 
such  as  are  ferae  naturae:  some  being  of  a  tame,  and  others 
of  a  toild  disposition.  [390]  In  such  as  are  of  a  nature 
tame  and  domestic  (as  horses,  kine,  sheep,  poultry,  and  the 
like),  a  man  may  have  as  absolute  a  property  as  in  any 
inanimate  beings.  The  .stealing  or  forcible  abduction  of 
such  property  as  this  is  also  felony,  for  these  are  things  of 
intrinsic  value,  serving  for  the  food  of  man,  or  else  for  the 
uses  of  husbandry.  But  in  animals  ferae  naturae  a  man 
can  have  no  absolute  property.^ 

Of  all  tame  and  domestic  animals,  the  brood  belongs  to 
the  owner  of  the  dam  or  mother,  the  English  law  agreeing 
with  the  civil,  that  '^^  partus  sequitur  v^ntrem''^  in  the  brute 
creation,  though  for  the  most  part  in  the  human  species  it 
disallows  that  maxim.  And  therefore  in  the  laws  of  England 
as  well  as  Rome, /"^ si  equam  meam  equus  tuns  praegnantem 
fecerit,  non  est  tuum  sed  men m  quod  natum  est."^     And  for 

1.  See  post.  p.   *391,  note.  3.  If  my  mare  becomes  with  foal  by 

2.  The  offspring  follows  the  ilar.i.  your  horse,  the  offspring  is  not  youri 


336         ,  .'      Of  Property  in  Things  Personal.        [EookII. 

this  Puffendorf  gives  a  sensible  reason,  not  only  because  the 
male  is  frequently  unknown,  but  also  because  the  dam,  during 
the  time  of  her  pregnancy,  is  almost  useless  to  the  proprietor, 
and  must  be  maintained  with  great  expense  and  care ;  where- 
fore as  her  owner  is  the  loser  by  her  pregnancy,  he  ought  to 
be  the  gainer  by  her  brood.  An  exception  to  this  rule  is  in 
the  case  of  young  cygnets,  which  belong  equally  to  the  owner 
of  the  cock  and  hen,  and  shall  be  divided  between  them.  But 
here  the  reasons  of  the  general  rule  cease,  and  '' cessante 
ratione  cessat  et  ipsa  lex;"*  for  the  male  is  well  known  by 
his  constant  association  with  the  female;  and  for  the  same 
reason  the  owner  of  the  one  doth  not  suffer  more  disadvant- 
age during  the  time  of  pregnancy  and  nurture  than  the  owner 
of  the  other.  [391] 

II.  Other  animals  that  are  not  of  a  tame  and  domestic 
nature  are  either  not  the  objects  of  property  at  all,  or  else 
fall  under  our  other  division,  namely,  that  of  qualified,  lim- 
ited, or  special  property,  which  is  such  as  is  not  in  its  nature 
permanent,  but  may  sometimes  subsist  and  at  other  times 
not  subsist.  In  discussing  which  subject  I  shall  in  the  first 
place  show  how  this  species  of  property  may  subsist  in  such 
animals  as  are  ferae  naturae,  or  of  a  wild  nature,  and  then 
how  it  may  subsist  in  any  other  things  when  under  particular 
circumstances. 

First,  then,  a  man  may  be  invested  with  a  qualified,  but 
not  an  absolute  property  in  all  creatures  that  are  ferae 
naturae,  either  per  industriam,  propter  impotentiam,  or 
propter  privilegium.'^ 

1.  A  qualified  property  may  subsist  in  animals  ferae 
naturae  per  industriam  hominis  by  a  man's  reclaiming  and 
making  them  tame  by  art,  industry,  and  education,  or  by 
so  confining  them  within  his  own  immedite  power  that  they 
cannot  escape  and  us5  their  natural  liberty.®     Our  law  ap- 

but  mine.    But  it  is  otherwise  in  the  5.  By  industry,  by  weakness  or  by 

ease  of  a  bailment  for  hire;  for  dur-  privilege. 

ing  the  period  of  hiring  the  hirer  shall  6.  See,  generally,  Ewell  on  Fixtures 

have  the  increase.     Concklin  v.  Ha-  (2d  Ed.,  1905),  *241  and  notes,  where 

Yens,  12  John.  314.  the  cases  are  fully  collected. 

4.  The  reason  ceasing,  the  law   it- 
self ceases. 


Chap.  XXV.J     Of  PfiOPEETY  ix  Things  Persoistal.  337 

prehends  the  most  obvious  distinction  to  be  between  &iicb 
animals  as  we  generally  see  tame,  and  are  therefore  seldom, 
if  ever,  found  wandering  at  large,  which  it  calls  domitae 
naturae,  and  such  creatures  as  are  usually  found  at  liberty, 
which  are  therefore  supposed  to  be  more  emphatically  ferae 
naturae,  though  it  may  happen  that  the  latter  shall  be  some- 
times tamed  and  confined  by  the  art  and  industry  of  man. 
[392]  Such  as  are  deer  in  a  park,  hares  or  rabbits  in  an 
enclosed  warren,  doves  in  a  dove-house,  pheasants  or  part- 
ridges in  a  mew,  hawks  that  are  fed  and  commanded  by  their 
owner,  and  fish  in  a  private  pond  or  in  trunks.  These  are 
no  longer  the  property  of  a  man  than  while  they  continue  in 
his  keeping  or  actual  possession;  but  if  at  any  time  they 
regain  their  natural  liberty,  his  property  instantly  ceases,^ 
unless  they  have  animum  revertendi,^  which  is  only  to  be 
known  by  their  usual  custom  of  returning.  The  law  there- 
fore extends  this  possession  farther  than  the  mere  manual 
occupation,  for  my  tame  hawk  that  is  pursuing  his  quarry 
in  my  presence,  though  he  is  at  liberty  to  go  where  he  pleases, 
is  nevertheless  my  property,  for  he  hath  animiim  revertendi. 
So  are  my  pigeons  that  are  flying  at  a  distance  from  their 
home  (especially  of  the  carrier  kind),  and  likewise  the  deer 
that  is  chased  out  of  my  park  or  forest,  and  is  instantly  pur- 
sued by  the  keeper  or  forester;  all  of  which  remain  still  in 
my  possession,  and  I  still  preserve  my  qualified  property  in 
them.  But  if  they  stray  without  my  knowledge,  and  do  not 
return  in  the  usual  manner,  it  is  then  lawful  for  any  stranger 
to  take  them.  But  if  a  deer,  or  any  wild  animal  reclaimed, 
hath  a  collar  or  other  mark  put  upon  him,  and  goes  and  re- 
turns at  his  pleasure,  or  if  a  wild  swan  is  taken  and  marked 
and  turned  loose  in  the  river,  the  owner's  property  in  him 
still  continues,  and  it  is  not  lawful  for  any  one  else  to  take 
him ;  but  otherwise  if  the  deer  has  been  long  absent  without 
returning,  or  the  swan  leaves  the  neighborhood.  Bees  also 
are  ferae  naturae;  but  when  hived  and  reclaimed  a  man  may 
have  a  qualified  property  in  them  by  the  law  of  nature  as  well 
as  by  the  civil  law.     And  to  the  same  purpose,  not  to  say  in 

7.  Cooley  on  Torts   (Students'  Ed.,  8.  The  disposition  to  return. 

1907),    413   and   notes. 

22 


338  Of  Pkoperty  in  Things  Personal.        [Book  TT. 

the  same  words,  with  the  civil  law,  speaks  Bracton.  Occu- 
pation, that  is,  hiving  or  including  them,  gives  the  property 
in  bees;  for  though  a  swarm  lights  upon  my  tree,  I  have  no 
more  property  in  them  till  I  have  hived  them  than  I  have  in 
the  birds  which  make  their  nests  thereon,  and  therefore  if 
another  hives  them  he  shall  be  their  proprietor.®  But  a 
swarm  which  fly  from  and  out  of  my  hive  are  mine  so  long 
as  I  can  keep  them  in  sight,  and  have  power  to  pursue  them ; 
and  in  these  circumstances  no  one  else  is  entitled  to  take 
them.^  [393]  But  it  hath  been  also  said  that  with  us  the 
only  ownership  in  bees  is  ratione  soli;  and  the  charter  of 
the  forest  which  allows  every  freeman  to  be  entitled  to  the 
honey  found  within  his  own  woods,  affords  great  counte- 
nance to  this  doctrine,  that  a  qualified  property  may  be  had 
in  bees,  in  consideration  of  the  property  of  the  soil  whereon 
they  are  found. 

In  all  these  creatures  reclaimed  from  the  wildness  of  their 
nature,  the  property  is  not  absolute,  but  defeasible,  a  proj)- 
erty  that  may  be  destro^^ed  if  they  resume  their  ancient  wild- 
ness and  are  found  at  large.  For  if  the  pheasants  escape 
from  the  mew,  or  the  fishes  from  the  trunk,  and  are  seen 
wandering  at  large  in  their  proper  element,  they  become 
ferae  naturae  again,  and  are  free  and  open  to  the  first  occu- 
paat  that  hath  ability  to  seize  them.  But  while  the}^  thus 
continue  my  qualified  or  defeasible  property,  they  are  as 
much  under  the  protection  of  the  law  as  if  they  were  abso- 
lutely and  indefeasibly  mine,  and  an  action  will  lie  against 
any  man  that  detains  them  from  me  or  unlawfully  destroys 
them.  It  is  also  as  much  felony  by  common  law  to  steal 
such  of  them  as  are  fit  for  food  as  it  is  to  steal  tame  animals  f 
but  not  so  if  they  are  only  kept  for  pleasure,  curiosity,  or 
whim,  as  dogs,  bears,  cats,  apes,  parrots,  and  singing-birds, 
because  their  value  is  not  intrinsic,  but  depending  only  on 
the  caprice  of  the  owner,  though  it  is  such  an  invasion  of 
property  as  may  amount  to  a  civil  injury,  and  be  redressed 

9.  The  right  to  cut  the  tree  is  in  Fisher  v.  Steward,  1  Smith   (N.  H.), 

the   own;  r   of   the   soil   and   therefore  60,  61. 

such  property  as  wiid  bees  are  suscep-  1.  Cooley  on  Torts,  414. 

tible  of   is   in   him   also.     Cooley  on  8.  See  Criminal  Law,  post. 

Torts   (Students'  Ed.),  413  and  note; 


CiFAP.  XXV.J     Or  PpvOperty  in  Things  Perso^S'al.  339 

by  a  civil  action.  [394]  Yet  to  steal  a  reclaimed  hawk 
is  felony  both  by  common  law  and  statute,  which  seems  to 
be  a  relic  of  the  tyranny  of  our  ancient  sportsmen.  And 
among  our  elder  ancestors,  the  ancient  Britons,  another  spe- 
cies of  reclaimed  animals,  viz.,  cats,  were  looked  upon  as 
creatures  of  intrinsic  value,  and  the  killing  or  stealing  one 
was  a  grievous  crime,  and  subjected  the  offender  to  a  fine, 
especially  if  it  belonged  to  the  king's  household,  and  was  the 
custos  horrei  regii,  for  which  there  was  a  very  peculiar 
forfeiture. 

2.  A  qualified  property  may  also  subsist  with  relation  to 
animals  ferae  naturae,  ratione  impotentise,  on  account  of 
their  own  inability."  As  when  hawks,  herons,  or  other 
birds  build  in  my  trees,  or  coneys  or  other  creatures  make 
their  nests  or  burrows  in  my  land,  and 'have  young  ones 
there,  I  have  a  qualified  property  in  those  young  ones  till 
such  time  as  they  can  fly  or  run  away,  and  then  my  prop- 
erty expires;  but  till  then  it  is  in  some  cases  trespass,  and 
in  others  felony,  for  a  stranger  to  take  them  away.  For 
here,  as  the  owner  of  the  land  has  it  in  his  j)ower  to  do 
what  he  pleases  with  them,  the  law  therefore  vests  a  prop- 
erty in  him  of  the  young  ones,  in  the  same  rnanner  as  it 
does  of  the  old  ones  if  reclaimed  and  confined,  for  these 
cannot  through  weakness,  any  more  than  the  others  through 
restraint,  use  their  natural  liberty  and  forsake  him. 

3.  A  man  may,  lastly,  have  a  qualified  property  in  ani- 
mals ferae  naturae,  propter  privilegium,  that  is,  he  may 
have  the  privilege  of  hunting,  taking,  and  killing  them  in 
exclusion  of  other  persons.*  [395]  Here  he  has  a  transient 
property  in  these  animals,  usually  called  game,  so  long  as 
they  continue  within  Kis  liberty,  and  may  restrain  any 
stranger  from  taking  them  therein;  but  the  instant  they 
depart  into  another  liberty  this  qualified  property  ceases.^ 

3.  See,  generally,  Ewellon  Fixtures  land  of  another,  the  property  in  him 
(2d  Ed.),  *241  and  notes.  is  in  the  owner  of  the  land.     Under 

4.  See  Ewell  on  Fixtures  (2d  Ed.),  tlie  civil  law  the  property  passed  to 
*241.  the  captor  and  ^uch  is  believed  to  be 

5.  "As  regards  beasts  of  the  chase,  the  recognized  rule  in  America  even 
the  English  rule  is  that  if  the  hunter  when  the  capture  has  been  effected  by 
shoots   and   captures   a  beast   on   the  means    of    a    trespass    on    another's 


3i0  Of  PiiorERTY  in  Things  Personal.        [Book  IT. 

The  manner  in  which  this  i^rivilcge  is  acquired  will  be 
shown  in  a  subsequent  chapter. 

The  qualified  property  which  we  have  hitherto  considered 
extends  only  to  animals  ferae  naturae  when  either  re- 
claimed, impotent,  or  privileged.  Many  other  things  may 
also  be  the  objects  of  qualified  property.  It  may  subsist  in 
the  very  elements  of  fire  or  light,  of  air  and  of  water.  A- 
man  can  have  no  absolute  permanent  property  in  these,  as 
he  may  in  the  earth  and  land,  since  these  are  of  a  vague 
and  fugitive  nature,  and  therefore  can  admit  only  of  a 
precarious  and  qualified  ownership,  which  lasts  so  long  as 
they  are  in  actual  use  and  occupation,  but  no  longer.  If 
a  man  disturbs  another  and  deprives  him  of  the  lawful 
enjoyment  of  thege,  if  one  obstructs  another's  ancient  win- 
dows,^ corrupts  the  air  of  his  house  or  gardens,  fouls  his 
water,  or  unpens  and  lets  it  out,  or  if  he  diverts  an  ancient 
watercourse  that  used  to  run  to  the  other's  mill  or  meadow, 
the  law  will  animadvert  hereon  as  an  injury,  and  protect 
the  party  injured  in  his  possession.  But  the  property  in 
them  ceases  the  instant  they  are  out  of  possession,  for  when 
no  man  is  engaged  in  their  actual  occupation  they  become 
again  common,  and  every  man  has  an  equal  right  to  appro- 
priate them  to  his  own  use. 

Property  may  also  be  of  a  qualified  or  special  nature,  on 
account  of  the  peculiar  circumstances  of  the  owner,  wlion 
the  thing  itself  is  very  capable  of  absolute  ownership  [396] ; 
as  in  case  of  bailment,^  or  delivery  of  goods  to  another  per- 
son for  a  particular  use,  as  to  a  carrier  to  convey  to  Ijou- 
don,  to  an  innkeeper  to  secure  in  his  inn,  or  the  like.  Here 
there  is  no  absolute  property  in  either  the  bailor  or  the 
bailee,  the  person  delivering  or  him  to  whom  it  is  delivered ; 
for  the  bailor  hath  only  the  right  and  not  the  immediate 
possession,  the  bailee  hath  the  possession  and  only  a  tem- 
porary right.  But  it  is  a  qualified  property  in  them  both, 
and  each  of  them  is  entitled  to  an  action  in  case  the  goods 

land."       Cooley   on   Torts    (Students'  6.  This  doctrine  is  not  deemed  ap- 

Ed.),  414  and  cases  cited.     See,  also,  plicable   to   this  country.     Parker  v. 

Ewell    on    Fixtures    (2d    Ed.),    *241,  Foote,   19  Wend.   309. 

242  and  notes.  7.  See  post,  *451. 


Chap.  XXV.]     Of  PiiOPERTT  in  Things  Personal.  341 

be  damaged  or  taken  away:  the  bailee  on  account  of  his 
immediate  possession,  the  bailor  because  the  possession  oi 
the  bailee  is,  immediately,  his  possession  also.  So  also  in 
case  of  goods  pledged  or  pawned  upon  condition  either  to 
repay  money  or  otherwise:  both  the  pledger  and  pledgee 
have  a  qualified,  but  neither  of  them  an  absolute,  property 
in  them.  The  pledger's  property  is  conditional,  and  de- 
pends upon  the  performance  of  the  condition  of  repayment, 
&c.,  and  so  too  is  that  of  the  pledgee,  which  depends  upon 
its  non-performance.  The  same  may  be  said  of  goods  dis- 
treined  for  rent  or  other  cause  of  distress,  which  are  in  the 
nature  of  a  pledge,  and  are  not  at  the  first  taking  the  abso- 
lute property  of  either  the  distreinor  or  party  distreined 
upon,  but  may  be  redeemed,  or  else  forfeited  by  the  sub- 
sequent conduct  of  the  latter.  But  a  servant  who  hath  the 
care  of  his  master's  goods  or  chattels,  as  a  butler  of  plate, 
a  shepherd  of  sheep,  and  the  like,  hath  not  any  property 
or  possession,  either  absolute  or  qualified,  but  only  a  mere 
charge  or  oversight.^ 

We  will  proceed  next  to  take  a  short  view  of  the  nature 
of  property  in  action,  or  such  where  a  man  hath  not  the 
occupation,  but  merely  a  bare  right  to  occupy  the  thing  in 
question,  the  possession  whereof  may,  however,  be  recov- 
ered by  a  suit  or  action  at  law,  from  whence  the  thing  so 
recoverable  is  called  a  thing,  or  chose  in  action.  [397] 
Thus  money  due  on  a  bond  is  a  chose  in  action,  for  a  j^rop- 
erty  in  the  debt  vests  at  the  time  of  forfeiture  mentioned  in 
the  obligation,  but  there  is  no  possession  till  recovered  by 
course  of  law.  If  a  man  promises  or  covenants  with  me 
to  do  any  act,  and  fails  in  it,  whereby  I  suffer  damage,  the 
recompense  for  this  damage  is  a  chose  in  action;  for  though 
a  right  to  some  recompense  vests  in  me  at  the  time  of  dam- 

8.  The  common  law  actions  of  tro-  see   the   leading   case    of   Armory    v. 

ver,  replevin  and  trespass  are  posses-  Delaniire,   1   Strange,  504;    1   Smith's 

scry    in   their   nature,   i.   e.,   founded  Lead.  Cases,  *470  et  seq.,  and  cases 

upon    a    right    of    possession.       The  collected  in  the  notes.  The  subject  will 

bailor,  not   being   in   possession,  may  be  further  considered  under  the  head 

maintain   case  for   an    injury   to   his  of  Pleading,  post,  in  this  volume  and 

in'erest  in  the  nature  of  a  reversion,  also  in  volume  2  of  this  series. 
As  to   possessory   actions   in   general, 


342  Of  Property  IN  Things  Personal.        [Book  II. 

age  done,  yet  what  and  how  large  such  recompense  shall 
be  can  only  be  ascertained  by  verdict,  and  the  i^ossession 
can  'only  be  given  me  by  legal  judgment  and  execution.  In 
the  former  of  these  cases  the  student  will  observe  that  the 
property  or  right  of  action  depends  upon  an  express  con- 
tract or  obligation  to  pay  a  stated  sum,  and  in  the  latter  it 
depends  upon  an  implied  contract  that  if  the  covenantor 
does  not  perform  the  act  he  engaged  to  do,  he  shall  pay 
me  the  damages  I  sustain  by  this  breach  of  covenant.  And 
hence  it  may  be  collected  that  all  property  in  action  depends 
entirely  upon  contracts,  either  express  or  implied,  which 
are  the  only  regular  means  of  acquiring  a  chose  in  action. 

And  having  thus  distinguished  the  different  deyrce  or  quan- 
tity of  dominion  or  property  to  Avhich  things  personal  are 
subject,  we  may  add  a  word  or  two  concerning  the  time  of 
their  enjoyment  and  the  number  of  their  owners. 

First,  as  to  the  time  of  enjoyment.  [398]  By  the  rules 
of  the  ancient  common  law  there  could  be  no  future  prop- 
erty to  take  place  in  expectancy,  created  in  personal  goods 
and  chattels.  But  yet^  in  last  wills  and  testaments  such 
limitations  of  jjersonal  goods  and  chattels,  in  remainder  af- 
ter a  bequest  for  life,  were  permitted.  And  therefore  if  a 
man  either  by  deed  or  will  limits  his  books  or  furniture 
to  A  for  life,  with  remainder  over  to  B,  tliig  remainder  is 
good.     But  where  an  estate-tail  in  things  personal  is  given 

9.  Choses    in   action   are   either   ex  is  assignable,  but  not  mere  personal 

contractu  or  ex  delicto,  i.  e.,  arising  torts   as   for   slander  or  assault   and 

out   of   torts   or  wrongs,   tiiough   the  battery. 

term  is  sometimes  used  in  the  nar-  Prior  to 'the  statute  3  &  4  Wm.  4, 
rower  sense  of  the  text.  By  the  com-  c.  42.  sec.  2,  the  remedy  for  a  tort  to 
mon  law  choses  in  action  were  not  the  property  of  another,  real  or  per- 
assignable,  using  the  term  in  the  com-  sonal,  by  an  action  in  form  ex  delicto, 
mon  la\v  sense  of  a  transfer  such  as  such  as  trespass,  trover  or  case  for 
enables  the  assignee  to  sue  in  his  own  waste,  etc.,  could  not  have  been  en- 
name.  But  latterly  the  a!<signee  could  forced  against  the  personal  rcpresen- 
sue  in  the  name  of  the  assignor  for  tations  of  the  tortfeasor;  and  even 
the  use  of  the  assignee  even  at  law;  now  no  action  can  be  maintained 
and  now  by  statute  he  may  sue  in  against  them  for  a  personal  tort  com- 
niany  states  in  his  own  name.  As  to  mitted  by  him.  See  Broom's  Legal 
torts  the  distinction  is  taken  that  a  Maxims,  *811,  820.  {Actio  personalis 
tort  which  relates  to  property  and  vioritur  cum  persona),  a  personal 
Len  fits  the  estate  of  the  wrongdoer  action  dies  with  the  person. 


CiiAP.  XX V.J     Of  Phoperty  m  Things  Personal.  343 

to  the  first  or  any  subsequent  possessor,  it  vests  in  him  the 
total  property,  and  no  remainder  over  shall  be  permitted 
on  such  a  limitation.^ 

Next,  as  to  the  number  of  owners.  [399]  Things  personal 
may  belong  to  their  owners,  not  only  in  severalty,  but  also 
in  joint-tenancy,  and  in  common  as  well  as  real  estates. 
They  cannot  indeed  be  vested  in  coparcenary,  because  they 
do  not  descend  from  the  ancestor  to  the  heir,  which  is  neces- 
sary to  constitute  coparceners.  But  if  a  horse  or  other  per- 
sonal chattel  be  given  to  tw^o  or  more  absolutely,  they  are 
joint-tenants  hereof,  and  unless  the  jointure  be  severed, 
the  same  doctrine  of  survivorship  shall  take  place  as  in 
estates  of  lands  and  tenements.^  And  in  like  manner  if  the 
jointure  be  severed,  as  by  either  of  them  selling  his  share, 
the  vendee  and  the  remaining  part-owner  shall  be  tenants 
in  common,  wdthout  any  jus  accrcscendi  or  survivorship. 
So-  also  if  100/.  be  given  by  will  to  two  or  more,  equally  to 
he  divided  between  them,  this  makes  them  tenants  in  com- 
mon, as  the  same  words  Avould  have  done  in  regard  to  real 
estates.  But,  for  the  encouragement  of  husbandry  and 
trade,  it  is  held  that  a  stock  on  a /arm,  though  occupied 
jointly,  and  also  a  stock  used  in  a  joint  undertaking  by 
way  of  partnership  in  trade,  shall  always  be  considered  as 
common,  and  not  as  joint  property,  and  there  shall  be  no 
survivorship  therein. 

1.  At  this  day  chattels  real  and  the  legat;  es  will,  at  common  law,  take 
personal  cannot  be  directly  entailed,  as  joint-tenants.  2  P.  Wms.  347,  529, 
but  they  may  by  deed  of  trust  be  as  4  Bro.  C.  C.  15,  3  Ves.  J.  628,  632, 
effectually  settled  to  one  for  life  with  6  Ves,  J.  130. 

remainders  over,  as  an  estate  of  in-  When  the  legacies  are  given  in  di- 
heritance,  if  it  be  not  attempted  to  vided  shares,  as  so  much  of  a  sum  of 
render  them  unalienable  beyond  the  money  to  B.  and  so  much  to  C,  the 
period  allowed  by  law.  See  Gilb.  Uses  legatees  will  be  considered  as  tenants 
and  Trusts,  by  Sugden,  121,  note  4,  in  common;  as  in  instances  where 
and  Mr.  Hargrave's  note  5  to  Co.  Litt.  legacies  are  given  to  two  or  more  per- 
20a.  See,  also,  Gillespie  v.  Miller,  5  sons,  "  share  and  share  alike,"  or  "  to 
John,  Ch.  21;  Underbill  v.  Tripp,  24  and  among  them,"  or  "to  them  re- 
How.  Pr.  51.  spectively,"  or  "  to  be  equally  divided 

2.  When  legacies  are  given  to  two  amongst  them,"  such  words  will  cre- 
of  more  persons  in  undivided  shares,  ate  a  tenancy  in  common.  3  Atk. 
as  1001.  "  io  A.  and  B."  or  to  the  731,  2  Atk.  441,  2  Atk.  121,  1  Atk. 
children  of  C;  or  in  case  of  a  bequest  404,  3  Bro.  C.  C.  25,  5  Ves.  J.  510. 
to   two   without   words   of   severance,  See  ante,  *179  ei  seq.  and  notes.. 


344  Title  to  Things  Personal,  etc.  [Book  II. 

CHAPTER  XXVI. 

OF   TITLE    TO    THINGS    PERSONAL    BY    OCCUPANCY. 

We  are  next  to  consider  the  title  to  things  personal,  or 

the  various  means  of  acquiring  and  of  losing  such  property 
as  may  be  had  therein.  [400]  And  these  methods  of  ac- 
quisition or  loss  are  principally  twelve:  1.  By  occupancy. 
2.  By  prerogative.  3.  By  forfeiture.  4.  By  custom.  5.  By 
succession.  6.  By  marriage.  7.  By  judgment.  8.  By 
gift  or  grant  9.  By  contract.  10.  By  bankruptcy.  11.  By 
testament.    12.  By  administration. 

I.  And  first,  a  property  in  goods  and  chattels  may  be 
acquired  by  occupancy. 

1.  Thus,  in  the  first  place,  it  hath  been  said  that  any- 
body may  seize  to  his  own  use  such  goods  as  belong  to  an 
alien  enemy.  [401].  But  this,  however  generally  laid  down 
by  some  of  our  writers,  must  in  reason  and  justice  bo 
restrained  to  such  captors  as  are  authorised  hi/  the  public 
authority  or  the  state,  residing  in  the  crown,  and  to  such 
goods  as  are  brought  i^to  this  country  by  an  alien  enemy, 
after  a  declaration  of  war,  without  a  safe-conduct  or  pass- 
port. And  therefore  it  hath  been  holden  that  where  a 
foreigner  is  resident  in  England,  and  afterwards  a  war 
breaks  out  between  his  country  and  ours,  his  goods  are  not 
liable  to  be  seized.  It  hath  also  been  adjudged  that  if  an 
enemy  take  the  goods  of  an  Englishman,  which  are  after- 
wards retaken  by  another  subject  of  this  kingdom,  the 
former  owner  shall  lose  his  property  therein,  and  it  shall 
be  indefeasibly  vested  in  the  second  taker,  unless  they  were 
retaken  the  same  day,  and  the  owner  before  sunset  puts  in 
his  claim  of  property, —  which  is  agreeable  to  the  law  of 
nations  as  understood  in  the  time  of  Grotius,  even  with 
regard  to  captures  made  at  sea,  which  were  held  to  be  tlie 
property  of  the  captors  after  a  possession  of  twenty-four 
hours,  though  the  modern  authorities  require  that  before 
the  property  can  be  changed,  the  goods  must  have  been 
brought  into  port,  and  have  continued  a  night  intra  presidia, 


Chap.  XXVL]     Title  to  Tiiisrcs  Personal,  etc.  345 

in  a  place  of  safe  custody,  so  that  all  hope  of  recovering 
them  was  lost.^  [402] 

And  as  in  the  goods  of  an  enemy,  so  also  in  his  person, 
a  man  may  acquire  a  sort  of  qualified  property  by  taking 
him  a  prisoner  in  war;  at  least  till  his  ransom  be  paid. 

2.  Thus  again,  whatever  movables  are  found  upon  the 
surface  of  the  earth  or  in  the  sea,  and  are  unclaimed  by 
any  owner,  are  supposed  to  be  abandoned  by  the  last  pro- 
prietor, and,  as  such,  are  returned  into  the  common  stock 
and  mass  of  things,  and  therefore  they  belong,  as  in  a  state 
of  nature,  to  the  first  occupant  or  fortunate  finder,  unless 
they  fall  within  the  description  of  waifs,  or  estrays,  or 
wreck,  or  hidden  treasure;  for  these,  we  have  formerly 
seen,  are  vested  by  law  in  the  king,  and  form  a  part  of 
the  ordinary  revenue  of  the  crown. 

3.  Thus,  too,  the  benefit  of  the  elements,  the  light,  the 
air,  and  the  water,  can  only  be  appropriated  by  occupancy. 
If  I  have  an  ancient  window  overlooking  my  neighbor's 
ground,  he  may  not  erect  and  blind  to  obstruct  the  light,^ 
but  if  I  build  my  house  close  to  his  wall,  which  darkens  it, 
I  cannot  compel  him  to  demolish  his  wall,  for  there  the 
first  occupancy  is  rather  in  him  than  in  me.  If  my  neigh- 
bor makes  a  tanyard  so  as  to  annoy  and  render  less  salu- 
brious the  air  of  my  house  or  gardens,  the  law  will  furnish 
me  with  a  remedy;  but  if  he  is  first  in  possession  of  the  air, 

1.  Sentence  of  condemnation  by  a  it  has  taken  place  merely  as  a  con- 
court  of  competent  jurisdiction,  a  sequence  of  taking  a  ship  as  prize, 
prize  court,  is  necessary.  Questions  although  the  ship  has  been  acquitted, 
respecting  the  seizure  of  property  as  1  Le  Caux  v.  Eden,  Dougl.  594.  For 
prizes,  seldom  arise  in  the  common  the  law  respecting  seizures  and  cap- 
law  or  equity  courts,  they  being,  in  tures,  and  the  modes  of  acquiring  and 
general,  cognizable  only  in  the  admi-  losing  property  thereby,  see  the  ad- 
ralty  courts  (United  States  Courts);  miralty  decisions  of  Sir  Wm.  Scott, 
and  when  a  ship  is  bona  fide  seized  collected  and  arranged  in  1  Chiity's 
as  prize,  the  owner  cannot  sustain  an  Commercial  L.  377  to  512,  and  ? 
action  in  a  court  of  common  law  for  Wooddes.  435  to  457. 
the  seizure,  though  she  be  released  2.  The  English  law  as  to  ancient 
■without  any  suit  being  instituted  lights  has  been  held  inapplicable  to 
against  her,  his  remedy,  if  any,  being  tliis  country  in  some  of  the  states  and 
in  the  jnonrt  of  admiralty,  2  Marsh,  followed  in  others.  See  Washburn  on 
R.  133;  and  the  same  rule  applies  to  Easements,  •498  et  seq. 
the  imprisonment  of  the  person  when 


34G  Title  to  Things  Personal,  etc.  [Book  II. 

and  I  fix  my  habitation  near  him,  the  nuisance  is  of  my  own 
seeking,  and  may  continue.'  [403]  If  a  stream  be  unoccu- 
pied I  may  erect  a  mill  thereon  and  detain  the  water;  yet 
not.  so  as  to  injure  my  neighbor's  prior  mill  or  his  meadow, 
for  he  hath  by  the  first  occupancy  acquired  a  property  in 
the  current. 

4.  With  regard  likewise  to  animals  ferae  naturae,*  all  man- 
kind had,  by  the  original  grant  of  the  Creator,  a  right  to 
pursue  and  take  any  fowl  or  insect  of  the  air,  any  fish  or 
inhabitants  of  the  waters,  and  any  beast  or  reptile  of  the 
field;  and  this  natural  right  still  continues  in  every  indi- 
vidual, unless  where  it  is  restrained  by  the  civil  laws  of 
the  country.  And  when  a  man  has  once  so  seised  them 
they  become,  while  living,  his  qualified  property,  or  if  dead 
are  absolutely  his  own;  so  that  to  steal  them  or  otherwise 
invade  this  property  is,  according  to  their  respective  value, 
sometimes  a  criitiinal  offence,  sometimes  only  a  civil  in- 
jury. The  restrictions  which  are  laid  upon  this  right  by 
the  laws  of  England  relate  principally  to  royal  fish,  as 
whale  and  sturgeon,  and  such  terrestrial,  aerial,  or  aquatic 
animals  as  go  under  the  denomination  of  game,^  the  taking 
of  which  is  made  the  exclusive  right  of  the  prince  and  such 
of  his  subjects  to  whom  he  has  granted  the  same  royal 
privilege.  But  those  animals  which  are  not  expressly  so 
reserved  ar«  still  liable  to  be  taken  and  appropriated  by 
any  of  the  king's  subjects,  upon  their  own  territories,  in 
the  same  manner  as  they  might  have  taken  even  game  itself 
till  these  civil  prohibitions  were  issued. 

5.  To  this  principle  of  occupancy  also  must  be  referred 
the  method  of  acquiring  a  special  personal  property  in 
corn  growing  on  the  ground  or  other  emblements,^  by  any 
possessor  of  the  land  Avho  hath  sown  or  planted  it,  whether 
he  be  owner  of  the  inheritance  or  of  a  less  estate,  which  em- 
blements are  distinct  from  the  real  estate  in  the  land,  and 
subject  to  many,  though  not  all,  the  incidents  attending 

3.  Contra,    Susquehanna    Fertilizer  4.  See  ante,  *390. 

Co.  V.  Malone,   73  Md.   268;   Hale  v.  5.  See  ante. 

Barlow,  4  C.  B.   (X.  S.)   336;   Cooley  6.  See  ante,  p.  *122,  144. 
on  Torts   (Students'  Ed.),  573,  574. 


Chap.  XXVI.]     Title  to  Things  Personal,  etc.  347 

personal  chattels.  [404]  They  were  devisable  by  testa- 
ments before  the  statute  of  wills,  and  at  the  death  of  the 
owner  shall  vest  in  his  executor  and  not  his  heir;  they  are 
forfeitable  by  outlawry  in  a  personal  action,  and  by  the 
statute  11  Geo.  II.  c.  19,  though  not  by  the  common  law, 
they  may  be  destreined  for  rent-arrere. 

6.  The  doctrine  of  property  arising  from  accession  is 
also  grounded  on  the  right  of  occupancy.  By  the  Roman 
law,  if  any  given  corporeal  substance  received  afterwards 
an  accession  by  natural  or  by  artificial  means,  as  by  the 
growth  of  vegetables,  the  pregnancy  of  animals,  the  em- 
broidering of  cloth,  or  the  conversion  of  wood  or  metal 
into  vessels  and  utensils,  the  original  owner  of  the  thing 
was  entitled  by  his  right  of  possession  to  the  property  of 
it  under  such  its  state  of  improvement;  but  if  the  thing 
itself  by  such  operation  was  changed  into  a  different  spe- 
cies, as  by  making  wine,  oil,  or  bread  out  of  another's 
grapes,  olives,  or  wheat,  it  belonged  to  the  new  operator, 
who  was  only  to  make  a  satisfaction  to  the  former  pro- 
prietor for  the  materials  which  he  had  so  converted.  And 
these  doctrines  are  implicitly  copied  and  adopted  by  our 
Bracton,  and  have  since  been  confirmed  by  many  resolutions 
of  the  courts.^   [405]     It  hath  even  been  held  that  if  one 

7.  This  also  has  long  been  the  law  as  he  can  trace  and  identify  his  own, 
of  England;  for  it  is  laid  down  in  the  may  reclaim  it.  If  one  has  willfully 
Year-books,  that  whatever  alteration  as  a  trespasser  taken  the  property  of 
of  form  any  property  has  undergone,  another  and  altered  it  in  form  or  sub- 
the  owner  may  seize  it  in  its  new  stance  bj-  an  expenditure  of  his  own 
shape,  if  he  can  prove  the  identity  labor  or  money,  he  will  not  be  suf- 
of  the  original  materials;  as  if  leather  fered  to  acquire  a  title  by  his  wrong- 
be  made  into  shoes,  cloth  into  a  coat,  ful  action  as  against  the  original 
or  if  a  tree  be  squared  into  timber,  owner  feclaiming  his  property.  There- 
or  silver  melted  or  beat  into  a  differ-  fore,  one  whose  trees  have  been  con- 
ent  figure.  5  Hen.  VII.  fo.  15,  -12  verted  into  shingles  by  a  trespasser 
Hen.  VTII.  fo.  10.  The  cases  referred  may  reclaim  his  property  in  shingles, 
to,  Bro.  Ab.  Propertie,  23  Moor.  20,  .  .  .  Indeed  the  doctrine  has  been 
Poph.  38,  are  very  explicit;  see,  also.  carried  so  far  that  in  Xew  York  it 
2  Campb  576,  Com.  Dig.  Pleader,  3  has  been  held  that  one  whose  grain 
M.  28,  Bac.  Ab.  Tresp.  E.  2.  has  been  taken  by  a  willful  trespasser 

•Judge  Cooley  in  his  work  on  Torts  and  converted  into  alcoholic  liquors 
uses  the  following  language:  "In  is  entitled  to  demand  and  recover  the 
general  the  owner  of  property,  so  long      new  product."    Cooley  on  Torts  (Stu- 


348  Title  to  Things  Personal,  etc.  [Book  IT. 

takes  away  and  clothes  another's  wife  or  son,  and  after- 
wards they  return  home,  the  garments  shall  cease  to  be  his 
property  who  provided  them,  being  annexed  to  the  person 
of  the  child  or  woman, 

7.  But  in  the  case  of  confusion  of  goods,  where  those  of 
two  persons  are  so  intermixed  that  the  several  portions  can 
be  no  longer  distinguished,  the  English  law  partly  agrees 
with  and  partly  differs  from  the  civil.  If  the  intermixture 
be  by  consent,  I  apprehend  that  in  both  laws  the  proprietors 
have  an  interest  in  common  in  proportion  to  their  respec- 
tive shares.  But  if  one  wilfully  intermixes  his  money, 
corn,  or  hay  with  that  of  another  man  without  his  appro- 
bation or  knowledge,  or  casts  gold  in  like  manner  into 
another's  melting-pot  or  crucible,  the  civil  law,  though  it 
gives  the  sole  property  of  the  whole  to  him  who  has  not 
interfered  in  the  mixture,  yet  allows  a  satisfaction  to  the 
other  for  what  he  has  so  improvidently  lost.  But  our 
law,  to  guard  against  fraud,  gives  the  entire  property,  with- 
out any  account,  to  him  whose  original  dominion  is  in- 
vaded and  endeavored  to  be  rendered  uncertain  without  his 
own  consent.* 

8.  There  is  still  another  species  of  property,  which  (if  it 
subsists  by  the  common  law),  being  grounded  on  labor  and 
invention,  is  more  properly  reducible  to  the  head  of  occu- 
pancy than  an}^  other.  And  this  is  the  right  which  an 
author  may  be  supposed  to  have  in  his  own  original  literary 
composition,  so  that  no  other  person  without  his  leave  may 
publish  or  make  profit  of  the  copies.  When  a  man  by  the 
exertion  of  his  rational  powers  has  produced  an  original 
work,  he  seems  to  have  clearly  a  right  to  dispose  of  that 

dents'  Ed.),  117,  118;  Church  v.  Lee,  Cooley  on  Torts   (Students'  Ed.),  118 

5  John.  348;  Burris  v.  Johnson,  1  Jf.  ai^d  cases  cited. 

J.  Marsh,  196  Silsbury  v.  McCoon,  8.  But  if  the  goods  are  practically 
3  N.  Y.  379.  of  the  same  kind  itnd  quality,  the  in- 
Some  cases  hold  that  in  trover  for  jured  party  is  only  entitled  to  take 
tl.e  value  where  the  trespass  is  by  his  proportion  from  the  common  mass, 
mistake  and  innocent,  the  owner  is  It  is  only  where  the  mixture  is  wrong- 
only  entitled  to  recover  the  value  of  ful  and  the  separation  of  the  goods 
the  property  as  part  of  the  realty  or  is  practically  impossible,  that  the  law 
immediately  after  severance  and  not  permits  the  injured  party  to  take  the 
its  value  in  its  improved  state  as  whole.  Cooley  on  Torts  (Student** 
where   the   trespass    is    willful.      See  Ed.),  115  and  cases  cited. 


Ojtap.  XXVI.]     Title  to  Things  Personal,  etc.  ,,     349 

identical  work  as  lie  pleases;  and  anj^  attempt  to  vary  the 
disposition  he  has  made  of  it  appears  to  be  an  invasion 
of  that  right.  [406]  -Now  the  identity  of  a  literary  com- 
position consists  entirely  in  the  sentiment  and  the  language; 
the  same  conceptions,  clothed  in  the  same  words,  must 
necessarily  be  the  same  composition.  And  whatever 
method  be  taken  of  exhibiting  that  composition  to  the  jear 
or  the  eye  of  another,  by  recital,  by  writing,  or  by  printing, 
in  any  number  of  copies  or  at  any  period  of  time,  it  is  al- 
ways the  identical  work  of  the  author  which  is  so  exhib- 
ited, and  no  other  man  (it  hath  been  thought)  can  have  a 
right  to  exhibit  it,  especially  for  profit,  without  the  au- 
thor's consent.  This  consent  may  perhaps  be  tacitly  given 
to  all  mankind  when  an  author  suffers  his  work  to  be  pub- 
lished by  another  hand  without  any  claim  or  reserve  of 
right,  and  without  stamping  on  it  any  marks  of  ownership, 
it  being  then  a  present  to  the  public,  like  building  a  church 
or  bridge,  or  laying  out  a  new  highway;  but  in  case  the 
author  sells  a  single  book,  or  totally  grants  the  copyright, 
it  hath  been  supposed,  in  the  one  case,  that  the  buyer  hath 
no  more  right  to  multiply  copies  of  that  book  for  sale  than 
he  hath  to  imitate  for  the  like  purpose  the  ticket  which  is 
bought  for  admission  to  an  opera  or  a  concert,  and  that,  in 
the  other,  the  whole  property,  with  all  its  exclusive  rights, 
is  perpetually  transferred  to  the  grantee.  On  the  other 
hand,  it  is  urged  that,  though  the  exclusive  property  of 
the  manuscript  and  all  which  it  contains  undoubtedly  be- 
longs to  the  author  before  it  is  printed  or  published,  yet, 
from  the  instant  of  publication,  the  exclusive  right  of  an 
author  or  his  assigns  to  the  sole  communication  of  his  ideas 
immediately  vanishes  and  evaporates,  as  being  a  right  of 
too  subtle  and  unsubstantial  a  nature  to  become  the  subject 
of  property  at  the  common  law,  and  only  capable  of  being 
guarded  by  positive  statutes  and  special  provisions  of  the 
magistrate. 

The  Roman  law  adjudged  that  if  one  man  wrote  any- 
thong  on  the  paper  or  parchment  of  another,  the  writing 
should  belong  to  the  owner  of  the  blank  materials,  meaning 
thereby  the  mechanical  operation  of  writing,  for  which  ii 
directed  the  scribe  to  receive  a  satisfaction;  for  in  works  of 


350  Title  to  Tjiixgs  Personal,  etc.  [Book  II. 

genius  and  invention,  as  in  painting  on  another  man's  can- 
vas, the  same  law  gave  the  canvas  to  the  painter.''   [407] 

But  whatever  inherent  copyright  might  have  been  sup- 
posed to  subsist  by  the  common  law,  the  statute  8  Anne, 
Cy  19  (amended  by  statute  15  Geo.  III.  c.  53),  hath  now  de- 
clared that  the  author  and  his  assigns  shall  have  the  sole 
liberty  of  printing  and  reprinting  his  works  for  the  term 
of  fourteen  years,  and  no  longer,  and  hath  also  protected 
that  property  by  additional  penalties  and  forfeitures;  di- 
recting further,  that  if  at  the  end  of  that  term  the  autlior 
himself  be  living,  the  right  shall  then  return  to  him  for 
another  term  of  the  same  duration,^  and  a  similar  privilege 
is  extended  to  the  inventors  of  prints  and  engravings,  for 
the  term  of  eight-and-twenty  years,  by  the  statutes  8  Geo. 
II,  c.  13,  and  7  Geo.  III.  c.  38,  besides  an  action  for  dam- 
ages, with  double  costs,  by  statute  17  Geo.  III.  c.  57.  All 
which  parliamentary  protections  appear  to  have  been  sug- 
gested by  the  exception  in  the  statute  of  monopolies,  21 
Jac.  I.  c.  3,  which  allows  a  royal  patent  of  privilege  to  be 
granted  for  fourteen  years  to  any  inventor  of  a  new  manu- 
facture, for  the  sole  working  or  making  of  the  same ;  by  vir- 
tue whereof  it  is  held,  that  a  temporary  property  therein 
becomes  vested  in  the  king's  patentee.^ 

9.  "  In  the  case  of  Miller  v.  Taylor,  constitutes  an  abandonment  of  liis 
4  Burr.  2303,  it  was  held  that  an  ex-  rights;  and  a  restricted  publication 
elusive  and  permanent  copyright  in  is  not  sucli  an  abandonment.  A  pub- 
authors  subsisted  by  the  common  law.  lication  to  consti  ute  an  abandonment 
But  afterwards,  in  the  case  of  Don-  must  be  literally  one  wliich  puts  the 
aldson  v.  Becket.  4  Burr.  2408,  before  production  bt^fore  tlie  general  public, 
tlie  House  of  Tx)rds,  it  was  held  t.iat  See,  generally.  Cooley  on  Torts  (Stu- 
no  copyright  subsists  in  authors  after  dents'  Ed.),  353  and  cases  cited, 
the  expiration  of  the  several  terms  1.  See  note  (9),  supra. 
crea'ed  by  the  statute  of  Queen  Anne."  2.  As  to  United  Slates  patents,  see 
Se?  Drone  on  Copyright,  1;  VVheaton  Act  of  Congress.  1909.  which 
V.  Peters,  8  Pet.  591;  Rev.  Stat.  U.  S.,  grant  a  monopoly  to  an  inventor  for 
§§  4948-4972;  5  &  6  Vict.,  ch.  45;  45  28  years  upon  compliance  with  tlie 
&  4f)  Vict.,  ch.  40.  statutory     requirements     which     are 

The    author    of    any    literary,    dra-  therein  fully  set  forth.   Patents,  copy- 

niatic  or  musical  composition  or  work  rights   and   trade-marks   constitute   a 

of  art  has,  however,   at  common   law  special   hrancli   of   practice   and   have 

a   property   in   his   production   which  a  voluminous  literature.   See  Bender's 

the  law  will  protect  so  long  as  he  has  Law  Catalogue   (1914),  pages  79  and 

not  made  such  a  publication  of  it  as  80. 


Chat.  XXVIL]     Op  Title  by  Pkekogative.  351 

CHAPTER  XXVII. 

OF  TITLE  BY  PREROGATIVE  AND  FORFEITURE. 

II.  A  second  method  of  acquiring  property  in  personal 
chattels  is  by  the  king's  prerogative,  whereby  a  right  may 
accrue  either  to  the  crown  itself  or  to  such  as  claim  under 
the  title  of  the  crown,  as  by  the  king's  grant  or  by  pre- 
scription, which  supposes  an  ancient  grant.   [408] 

Such,  in  the  first  place,  are  all  tributes,  taxes,  ^  and  cus- 
toms, whether  constitutionally  inherent  in  the  crown,  as 
flowers  of  the  prerogative  and  branches  of  the  census  re- 
galis,  or  ancient  royal  revenue,  or  whether  they  be  occa- 
sionally created  by  authority  of  parliament.  In  these  the 
king  acquires  and  the  subject  loses  a  property  the  instant 
they  become  due.  If  paid,  they  are  a  chose  in  possession; 
if  unpaid,  a  chose  in  action.  Hither,  also,  may  be  referred 
all  forfeitures,  fines,  and  amercements  due  to  the  king, 
which  accrue  by  virtue  of  his  ancient  prerogative  or  by 
particular  modern  statutes.  And  in  either  case  the  owner 
of  the  thing  forfeited  and  the  person  fined  or  amerced  lose 
and  part  with  the  property  of  the  forfeiture,  fine,  or  amerce- 
ment the  instant  the  king  or  his  grantee  acquires  it. 

In  these  several  methods  of  acquiring  property  by  pre- 
rogative there  is  also  this  peculiar  quality,  that  the  king 
cannot  have  a  joint  property  with  any  person  in  one  entire 
chattel,  or  such  a  one  as  is  not  capable  of  division  or  separa- 
tion; but  where  the  titles  of  the  king  and  a  subject  concur, 
the  king  shall  have  the  whole:  in  like  manner  as  the  king 
cannot,  either  by  grant  or  contract,  become  a  joint-tenant 
of  a  chattel  real  with  another  person,  but  by  such  grant 
or  contract  shall  become  entitled  to  the  whole  in  severalty. 
[409]  Thus,  if  a  horse  be  given  to  the  king  and  a  private 
person,  the  king  shall  have  the  sole  property;  if  a  bond  be 
made  to  the  king  and  a  subject,  the  king  shall  have  the 
whole  penalty,  the  debt  or  duty  being  one  single  chattel. 

1.  Taxation  and  special  assessments  have  a  voluminous  literature.  See 
also  constitute  another  specialty  and      Bender's   Law   Catalogue,   104,   105. 


352  Of  Title  by  Prerogative.  [Book  If. 

And  so  if  two  persons  have  the  property  of  a  horse  between 
them,  or  have  a  joint  debt  owing  them  on  bond,  and  one  of 
them  assigns  his  part  to  the  king  or  is  attainted,  whereby 
his  moiety  is  forfeited  to  the  crown,  the  king  shall  have 
the  entire  horse  and  entire  debt. 

[As  to  the  acqaisition  of  property  in  wreck,  In  treasure-troTe,  In  waifs, 
in  estrays,  in  royal  tish,  in  swans,  and  the  lilie,  which  are  not  transferred 
to  the  sovereign  from  any  former  owner,  but  are  originally  inherent  in 
him  by  the  rules  of  law,  and  are  derived  to  particular  subjects  as  royal 
franchises  by  his  bounty,  see  the  Eighth  Chapter  of  the  former  Book.] 

There  is  also  a  kind  of  prerogative  copyright  subsisting 
in  certain  books,  which  is  held  to  be  vested  in  the  crown 
upon  different  reasons.  [410]  Thus,  1.  The  king,  as  the 
executive  magistrate,  has  the  right  of  promulgating  to  the 
people  all  acts  of  state  and  government.  This  gives  him 
the  exclusive  privilege  of  printing  at  his  own  press,  or  that 
of  his  grantees,  all  acts  of  parliament,  proclamations,  and 
orders  of  council.  2.  As  supreme  head  of  the  church  he  hath 
a  right  to  the  publication  of  all  liturgies  and  books  of  divine 
service.  3.  He  is  also  said  to  have  a  right  by  purchase 
to  the  copies  of  such  law-books,  grammars,  and  other  com- 
positions as  were  compiled  or  translated  at  the  expense  of 
the  crown.  And  upon  these  two  last  principles  combined 
the  exclusive  right  of  printing  the  translation  of  the  Bible 
is  founded. 

There  still  remains  another  species  of  prerogative  prop- 
erty, founded  upon  a  very  different  principle  from  any  that 
have  been  mentioned  before:  the  property  of  such  animals 
ferae  naturae  as  are  known  by  the  denomination  of  game,^ 
with  the  right  of  pursuing,  taking,  and  destroying  them, 
which  is  vested  in  the  king  alone,  and  from  him  derived  to 
such  of  his  subjects  as  have  received  the  grants  of  a  chase, 
a  park,  a  free  warren,  or  free  fishery.  By  the  law  of  nature 
every  man,  from  the  prince  to  the  peasant,  has  an  equal 
right  of  pursuing  and  taking  to  his  own  use  all  such  crea- 

2.  The  right  to  take  game  is  vari-  also  the  statutes  ot  the  United  States. 
ously  regulated  by  statute  in  the  sev-  See  Ewell  on  Fixtures  (2d  Ed,),  *241 
€ral  states.    See  the  local  statutes  and      notes;  also  ante,  notes. 


Chap.  XXVII.]     Or  Title  by  Pkeeogative.  353 

tures  as  are  ferae  naturae j  and  therefore  the  property  of 
nobody,  but  liable  to  be  seized  by  the  first  occupant.  And 
so  it  was  held  by  the  imperial  law  even  so  late  as  Justinian's 
time.  [411]  But  it  follows  from  the  very  end  and  consti- 
tution of  society  that  this  natural  right,  as  well  as  many 
others  belonging  to  man  as  an  individual,  may  be  restrained 
by  positive  laws  enacted  for  reasons'  of  state,  or  for  the 
supposed  benefit  of  the  community.  This  restriction  may 
be  either  with  respect  to  the  place  in  which  this  right  may 
or  may  not  be  exercised;  with  respect  to  thie  animals  that  are 
the  subject  of  this  right;  or  with  respect  to  the  persons  al- 
lowed or  forbidden  to  exercise  it.  And  in  consequence  of 
this  authority  we  find  that  the  municipal  laws  of  many 
nations  have  exerted  such  power  of  restraint:  have  in  gen- 
eral forbidden  the  entering  on  another  man's  grounds  for 
any  cause  without  the  owner's  leave;  have  extended  their 
protection  to  such  particular  animals  as  are  usually  the 
objects  of  pursuit;  and  have  invested  the  prerogative  of 
hunting  and  taking  such  animals  in  the  sovereign  of  the 
state  only,  and  such  as  he  shall  authorize. 

Upon  the  Norman  Conquest  the  right  of  pursuing  and 
taking  all  beasts  of  chase  or  venary,  and  such  other  animals 
as  were  accounted  game,  was  then  held  to  belong  to  the  king, 
or  to  such  only  as  were  authorized  under  him.  [415]  And 
this  as  well  upon  the  principles  of  the  feodal  law,  that  the 
king  is  the  ultimate  proprietor  of  all  the  lands  in  the  king- 
dom, they  being  all  held  to  him  as  the  chief  lord,  or  lord 
paramount  of  the  fee,  and  that  therefore  he  has  the  right 
of  the  universal  soil  to  enter  thereon  and  to  chase  and  take 
such  creatures  at  his  pleasure,  as  also  upon  another  maxim 
of  the  common  law,  which  we  have  frequently  cited  and 
illustrated,  that  these  animals  are  hona  vacantia,  and,  having 
no  other  owner,  belong  to  the  king  by  his  prerogative.  As, 
Iherefore,  the  former  reason  was  held  to  vest  in  the  king  a 
right  to  pursue  and  take  them  anywhere,  the  latter  was 
supposed  to  give  the  king  and  such  as  he  should  authorize  a 
sole  and  exclusive  right. 

As  the  king  reserved  to  liimself  the  forests  for  his  own 
exclusive  diversion,  so  he  granted  out  from  time  to  time 
23 


354  Of  Title  by  Prerogative.  [Book  II. 

other  tracts  of  lauds  to  his  subjects  under  the  names  of 
chases  or  parks,  or  gave  them  license  to  make  such  in  their 
own  grounds,  which  indeed  are  smaller  forests  in  the  hands 
of  a  subject,  but  not  governed  by  the  forest  laws ;  and  by  the 
common  law  no  person  is  at  liberty  to  take  or  kill  any  beasts 
of  chase  but  such  as  hath  an  ancient  chase  or  park,  unless 
they  be  also  beasts  of  prey.   [416] 

•  As  to  all  inferior  species  of  game,  called  beasts  and  fowls 
of  warren,  the  liberty  of  taking  or  killing  them  is  another 
franchise  of  royalty,  derived  likewise  from  the  crown,  and 
called  free  loarren, —  a  word  which  signifies  preservation  or 
custody,  as  the  exclusive  liberty  of  taking  and  killing  fish  in 
a  public  stream  or  river  is  called  a  free  fisher ij;  of  which, 
however,  no  new  franchise  can  at  present  be  granted  by  the 
express  provision  of  Magna  Carta,  c.  16.  [417]  The  princi- 
pal intention  of  granting  to  any  one  these  franchises  or  lib- 
erties was  in  order  to  protect  the  game,  by  giving  the  grantee 
a  sole  and  exclusive  power  of  killing  it  himself,  provided 
he  prevented  other  persons.  And  no  man  but  he  who  has 
a  chase  or  free  warren,  by  grant  from  the  crown  or  prescrip- 
tion, which  supposes  one,  can  justify  hunting  or  sporting 
upon  another  man's  soil;  nor  indeed,  in  thorough  strictness 
of  common  law,  either  hunting  or  sporting  at  all.  It  is 
true  that,  by  the  acquiescence  of  the  crown,  the  frequent 
grants  of  free  warren  in  ancient  times,  and  the  introduction 
of  new  penalties  of  late  by  certain  statutes  for  preserving 
the  game,  this  exclusive  prerogative  of  the  king  is  little 
known  or  considered,  every  man  that  is  exempted  from  these 
modern  penalties  looking  upon  himself  as  at  liberty  to  do 
Avhat  he  pleases  with  the  game;  whereas  the  contrary  is 
strictly  true,  that  no  man,  however  well  qualified  he  may 
vulgarly  be  esteemed,  has  a  right  to  encroach  on  the  royal 
prerogative  by  the  killing  of  game,  unless  he  can  show  a 
particular  grant  of  free  warren,  or  a  prescription  which  pre- 
sumes a  grant,  or  some  authority  under  an  act  of  parliament. 
[418] 

Upon  the  whole  it  appears  that  the  king,  by  his  preroga- 
tive, and  such  persons  as  have  under  his  authority  the  royal 
franchises  of  cha>se,  park,  free  warren,  or  free  fishery,  are  the 


Chap.  XXVII.]     Or  Title  by  Forfeiture.  -  355 

only  persons  who  may  acquire  any  property,  however  fugi- 
tive and  transitory,  in  these  animals  ferae  naturae  while 
living,  which  is  said  to  be  vested  in  them,  as  was  observed  in 
a  former  chapter,  propter  pricUegmm.  [419]  And  it  must 
also  be  remembered  that  such  persons  as  may  thus  lawfully 
hunt,  fish,  or  fowl  ratione  privilcgil,  have  (as  has  been  said) 
only  a  qualified  property  in  these  animals,  it  not  being  abso- 
lute or  permanent,  but  lasting  only  so  long  as  the  creatures 
remain  within  the  limits  of  such  respective  franchise  or  lib- 
erty, and  ceasing  the  instant  they  voluntarily  pass  out  of  it. 
It  is  held,  indeed,  that  if  a  man  starts  any  game  within  his 
own  grounds,  and  follows  it  into  another's  and  kills  it  there, 
the  property  remains  in  himself.  And  this  is  grounded  on 
reason  and  natural  justice,  for  the  property  consists  in  the 
possession,  which  possession  commences  by  the  finding  it  in 
his  own  liberty,  and  is  continued  by  the  immediate  pursuit. 
And  so  if  a  stranger  starts  game  in  one  man's  chase  or  free 
warren,  and  hunts  it  into  another  liberty,  the  property  con- 
tinues in  the  owner  of  the  chase  or  warren,  this  property 
arising  from  privilege,  and  not  being  changed  by  the  act  of  a 
mere  stranger.  Or  if  a  man  starts  game  on  another's  private 
grounds  and  kills  it  there,  the  property  belongs  to  him  in 
whose  ground  it  was  killed,  because  it  was  also  started  there, 
the  property  arising  ratione  soli.  [Blades  v.  Higgs,  11  H.  L. 
Oas.  621.]  Whereas  if,  after  being  started  there,  it  is  killed 
in  the  grounds  of  a  third  person,  the  property  belongs  not  to 
the  owner  of  the  first  ground,  because  the  property  is  local, 
nor  yet  to  the  owner  of  the  second,  because  it  was  not  started 
in  his  soil,  but  it  vests  in  the  person  who  started  and  Svilled 
it,  though  guilty  of  trespass  against  both  the  owners. 

III.  I  proceed  now  to  a  third  method  whereby  a  title  to 
goods  and  chattels  may  be  acquired  and  lost,  viz.,  by  for- 
feiture, as  a  punishment  for  some  crime  or  misdemeanor  in 
the  party  forfeiting,  and  as  a  compensation  for  the  offence 
and  injury  committed  against  him  to  whom  they  are  for- 
feited.3   [420] 

3.  See  post.  Book  4,  Criminal  Law. 


35G  Of  Title  by  Forfeiture.  [Book  II. 

In  the  variety  of  penal  laws  with  which  the  subject  is  at  present  en- 
cumbered, it  were  a  tedious  and  impracticable  task  to  reckon  up  the 
various  forfeitures  inflicted  by  special  statutes  for  particular  crimes  and 
misdemeanors.  I  shall  therefore  confine  myself  to  those  offences  only 
by  which  all  the  goods  and  chattels  of  the  offender  are  forfeited. 

Goods  and  chattels,  then,  are  totally  forfeited  by  conviction  of  high 
treason  or  misprision  of  treason;  of  petit  treason;  of  felony  in  general,  and 
particularly  of  felony  de  se,*  and  of  manslaughter, — nay,  even  by  convic- 
tion of  excusable  homicide;  by  outlawry  for  treason  of  felony;  by  convic- 
tion of  petit  larceny;  by  flight  in  treason  or  felony,  even  though  the  party 
be  acquitted  of  the  fact;  by  standing  mute  when  arraigned  of  ftlony;  by 
drawing  a  toeapon  on  a  judge,  or  striking  any  one  i»  the  presence  of  the 
king's  courts;  by  praemunire;  by  pretended  prophecies,  upon  a  second  con- 
viction; by  owling;  by  the  residing  abroad  ot  artificers,  and  by  challenging 
to  fight  on  account  of  money  won  at  gaming.  [421] 

And  this  forfeiture  commences  from  the  time  of  conviction,  not  the 
time  of  committing  the  fact,  as  in  forfeitures  of  real  property. 

4.  Suicide. 


CiiAP.  XXVIIL]       Of  Title  by  Custom.  357 


CHAPTER  XXVIII.» 

OF  TITLE  BY  CUSTOM. 

IV.  A  fourth  method  of  acquiring  property  in  things  personal  or  chat- 
tels is  by  custom,  whereby  a  right  vests  in  some  particular  persons, 
either  by  the  local  usage  of  some  particular  place,  or  by  the  almost 
general  and  universal  usage  of  the  kingdom.  [422]  It  were  endless  should 
I  attempt  to  enumerate  all  the  several  kinds  of  special  customs  which 
may  entitle  a  man.  to  a  chattel  interest  in  different  parts  of  the  king- 
dom; I  shall  herefore  content  myself  with  making  some  observations  on 
three  sorts  of  customary  interests  which  obtain  pretty  generally  through- 
out most  parts  of  the  nation,  and  are  therefore  of  more  universal  concern, 
viz.  heriots,  mortuaries,  and  heirlooms. 

1.  Heriots  are  usually  divided  into  two  sorts:  her iot-ser'v ice  and  heriot- 
custom.  The  former  are  such  as  are  due  upon  a  special  reservation  in  a 
grant  or  lease  of  lands,  and  therefore  amount  to  little  more  than  a  mere 
rent;  the  latter  arise  upon  no  special  reservation  whatsoever,  but  de- 
pend merely  upon  immemorial  usage  and  custom.  And  they  are  defined 
to  be  a  customary  tribute  of  goods  and  chattels  payable  to  the  lord  of 
the  fee  on  the  decease  of  the  owner  of  the  land. 

This  heriot  is  sometimes  the  best  live  beast  or  avcrium  which  the  ten- 
ant dies  possessed  of,  sometimes  the  best  inanimate  good,  under  which 
a  jewel  or  piece  of  plate  may  be  included;  but  it  is  always  a  personal 
chattel,  which,  immediately  on  the  death  of  the  tenant  who  was  the  owner 
of  it,  being  ascertained  by  the  option  of  the  lord,  becomes  vested  in  him 
as  his  property,  and  is  no  charge  upon  the  lands,  but-  merely  on  the 
goods  and  chattels.  [424]     [Not  applicable  to  this  country.] 

2.  Mortuaries  are  a  sort  of  ecclesiastical  heriots,  being  a  customary 
gift  claimed  by  and  due  to  the  minister  in  very  many  parishes  on  the 
death  of  his  parishioners.  [425]  After  the  lord's  heriot  or  best  good  was 
taken  out,  the  second  best  chattel  was  reserved  to  the  church  as  a 
mortuary. 

The  variety  of  customs  with  regard  to  mortuaries  giving  frequently  a 
handle  to  exactions  on  the  one  side  and  frauds  or  expensive  litigations 
on  the  other,  it  was  thought  proper  by  statute  21  Hen.  VIII.  c.  6,  to  re- 
duce them  to  some  kind  of  certainty.  [427]  For  this  purpose  it  is  en- 
acted that  all  mortuaries  or  corse-presents  to  parsons  of  any  parish  shall 
be  taken  in  the  following  manner,  unless  where  by  custom  less  or  none 
at  all  is  due:  viz.  for  every  person  who  does  not  leave  goods  to  the  value 
of  ten  marks,  nothing;  for  every  person  who  leave  goods  to  the  value 
of  ten  marks  and  under  thirty  pounds,  3s.  4d.;  if  above  thirty  pounds  and 
under  forty  pounds,  6s.  S<J-;  if  above  forty  pounds,  of  what  value  soever 

1.  Retained  principally  for  its  historical  value. 


358  Of  Title  by  Custom.         -  T     [Book  IT. 

they  may  be,  10*.  and  no  more.  And  no  mortuary  shall  throughout  the 
kingdom  be  paid  for  the  death  of  any  feme-covert,  nor  for  any  child,  nor 
for  any  one  of  full  age  that  is  not  a  housekeeper,  nor  for  any  wayfar- 
ing man,  but  such  wayfaring  man's  mortuary  shall  be  paid  in  the  parish 
to  which  he  belongs.  And  upon  this  statute  stands  the  law  of  mortuaries 
to  this  day.     [Not  applicable  to  this  country.] 

3.  Heirlooms  are  such  goods  and  personal  chattels  as,  contrary  to  the 
nature  of  chattels,  shall  go  by  special  custom  to  the  heir  along  with  the 
Inheritance,  and  not  to  the  executor  of  the  last  proprietor.  [Not  applic- 
able to  this  country.]  ^  The  termination  loom  is  of  Saxon  original,  in 
which  language  it  signifies  a  limb  or  member,  so  that  an  heirloom  is 
nothing  else  but  a  limb  or  member  of  the  inheritance.  They  are  gen- 
erally such  things  as  cannot  be  taken  away  without  damaging  or  dis- 
membering the  freehold;  otherwise  the  general  rule  is  that  no  chattel 
interest  whatsoever  shall  go  to  the  heir,  notwithstanding  it  be  expressly 
limited  to  a  man  and  his  heirs,  but  shall  vest  in  the  executor.  But  deer 
in  a  real  authofized  park,  fishes  in  a  pond,  doves  in  a  dove-house,  etc., 
though  in  themselves  personal  chattels,  yet  they  are  so  annexed  to  and 
so  necessary  to  the  well-being  of  the  Inheritance,  that  they  shall  accom- 
pany the  land  wherever  it  vests,  by  either  descent  or  purchase.^  [428] 
For  this  reason  also  I  apprehend  it  is  that  the  ancient  jewels  of  the  crown 
are  held  to  be  heirlooms,  for  they  are  necessary  to  maintain  the  state 
and  support  the  dignity  of  the  sovereign  for  the  time  being. 

Charters  likewise  and  deeds,  court-rolls,  and  other  evi- 
dences of  the  land,  together  with  the  chests  in  which  they 
are  contained,  shall  pass  together  with  the  land  to  the  heir, 
in  the  natiire  of  heirlooms,  and  shall  not  go  to  the  executor.* 

By  special  custom  also  in  some  places  carriages,  utensils,  and  other 
household  implements  may  be  heirlooms;  but  such  custom  must  bo 
strictly  proved. 

On  the  other  hand,  by  almost  general  custom,  whatever 
is  strongly  affixed  to  the  freehold  or  inheritance  and  can- 
not be  severed  from  thence  without  violence  or  damage, 

2.  See  Ewell  on  Fixtures  (2d  Ed.),  own  muniments  of  title;  and  a  certi- 
*232-239  and  cases  in  notes.  fied  copy  of  the  record  of  deeds  being 

3.  See  Ewell  on  Fixtures  (2d  Ed.),  competent  evidence,  the  rule  of  the 
•2  41-245  and  notes.  text  has  lost  much  of  its  importanoe. 

4.  Ewell  on  Fixtures  (2d  Ed.),  See  Ewell  on  Fixtures  (2d  Ed.) ,  •228. 
*229.  Land   warrants   autiiorizing  the  loca- 

In  this  country  where  the  statutes  tioii   of   public   lands   are   real   estate 

everywhere  provide  for  the  recording  and  pass  to  the  heir  unless  specifically 

of  deeds  of  conveyance  in  public  of-  devised.  Atwood  v.  Beclv,  21  Ala.  590. 
fices,  the  f,Tantor  usually  retains  his 


Chap.  XXVIIL]        Of  Title  by  Custom.  359 

^'  quod  db  aedihus  non  facile  revcllitnr,''  is  become  a  member 
of  the  inheritance,  and  shall  thereupon  pass  to  the  heir,  as 
chimney-pieces,  pumps,  old  fixed  or  dormant  tables, 
benches,  and  the  like.^ 

other  personal  chattels  there  are  which  also  descend  to  the  heir  in  the 
nature  of  heirlooms,  as  a  monument  or  tombstone  in  a  church,  or  the 
coat-armor  of  his  ancestor  there  hung  up,  with  the  pennons  and  other 
ensigns  of  honor  suited  to  his  degree.  [429]  In  this  case,  albeit  the  free- 
hold of  the  church  is  in  the  parson,  and  these  are  annexed  to  that  free- 
hold, yet  cannot  the  parson  or  any  other  take  them  away  or  deface  them, 
but  is  liable  to  an  action  from  the  heir.  Pews  in  the  church  are  some- 
what of  the  same  nature,  which  may  descend  by  custom  immemorial, 
without  any  ecclesiastical  concurrence,  from  the  ancestor  to  the  heir.* 

But  though  the  heir  has  a  property  in  the  monuments 
and  escutcheons  of  his  ancestors,"  yet  he  has  none  in  their 
bodies  or  ashes,^  nor  can  he  bring  any  civil  action  against 
such  as  indecently,  at  least,  if  not  impiously,  violate  and 
disturb  their  remains  when  dead  and  buried.  The  parson, 
indeed,  who  has  the  freehold  of  the  soil,  may  bring  an  ac- 
tion of  trespass  against  such  as  dig  and  disturb  it;  and  if 
any  one  in  taking  up  a  dead  body  steals  the  shroud  or  other 
apparel,  it  will  be  felony,  for  the  property  remains  in  the 
executor,  or  whoever  was  at  the  charge  of  the  funeral.^ 

But  to  return  to  heirlooms;  these,  though  they  be  mere  chattels,  yet 
cannot  be  devised  away  from  the  heir  by  will;  but  such  a  devise  is  void 
even  by  a  tenant  in  fee-simple.  For  though  the  owner  might  during  his 
life  have  sold  or  disposed  of  them,  as  he  might  of  the  timber  of  the 
estate,  since  as  the  inheritance  was  his  own  he  might  mangle  or  dis- 
member it  as  he  pleased,  yet  they  being  at  his  death  instantly  vested  in 
the  heir  the  devise— which  is  subsequent,  and  not  to  take  effect  till  after 
his  death — shall  be  postponed  to  the  custom  whereby  they  have  already 
descended. 

5.  Sse  note  on  fixtures  under  head  8.  There  is  no  property  in  a  corpse. 
^*  Waste."  Guthrie  v.  Weaver,   1  Mo.  App.   13G ; 

6.  See  the  local  statutes.     Right  of  Ewell  on  Fixtures    (2d  Ed.),  *239. 
pewholder   generally   considered   as   a  9.  See  post,  Criminal  Law,  Book  4. 
■quasi-easement.  Consult   the  local  statutes. 

7.  See  Ewell  on  Fixtures   (2d  Ed.), 
*234. 


300  Of  Title  by  Succession.  [Book  II. 

CHAPTER  XXIX. 

OF   TITLE  BY  SUCCESSION^   MARRIAGE,   AND   JUDGMENT. 

V.  The  fifth  method  of  gaining  a  property  in  chattels, 
either  personal  or  real,  is  by  succession,  which  is,  in  strict- 
ness of  law,  only  applicable  to  corporations  aggregate^  of 
many,  as  dean  and  chapter,  mayor  and  commonalty,  master 
and  fellows,  and  the  like,  in  which  one  set  of  men  may,  by 
succeeding  another  set,  acquire  a  property  in  all  the  goods^ 
movables,  and  other  chattels  of  the  corporation.  [430] 
The  true  reason  whereof  is  because  in  judgment  of  law  a 
corporation  never  dies,  and  therefore  the  predecessors  who 
lived  a  century  ago,  and  their  successors  now  in  being,  are 
one  and  the  same  body  corporate, —  which  identity  is  a 
property  so  inherent  in  the  nature  of  a  body  politic,  that 
even  when  it  is  meant  to  give  anything  to  be  taken  in  suc- 
cession by  such  a  body,  that  succession  need  not  be  ex- 
pressed, but  the  law  will  of  itself  imply  it.  So  that  a  gift, 
to  such  a  corporation,  either  of  lands  or  of  chattels,  without 
naming  their  successors,  vests  an  absolute  property  in  them 
so  long  as  the  corporation  subsists. 

But  with  regard  to  sole  corporations  ^  a  considerable  dis- 
tinction must  be  made.  [431]  For  if  such  sole  corporation 
be  the  representative  of  a  number  of  persons, —  as  the  mas- 
ter of  an  hospital,  who  is  a  corporation  for  the  benefit  of 
the  poor  brethren,  an  abbot,  or  prior,  by  the  old  law  before 
the  Eeformation,  who  represented  the  whole  convent, — 
such  sole  corporations  as  these  have,  in  this  respect,  the 
same  powers  as  corporations  aggregate  have  to  take  per- 
sonal property  or  chattels  in  succession.  And  therefore  a 
bond  to  such  a  master,  abbot,  or  dean,  and  his  successors  is. 
good  in  law,  and  the  successor  shall  have  the  advantage  of 
it  for  the  benefit  of  the  aggregate  society  of  which  he  is  in 
law  the  representative.  "Whereas  in  the  case  of  sole  corpo- 
rations,  which   represent   no    others    but    tliemselves,    as 

1.  See  ant€f  Corporations,  notes,  2.  See  ante. 


CiiAP.  XXIX.]       Of  Title  by  Succession.  8G1 

bishops,  parsons,  and  tlie  like,  no  chattel  interest  can  regu- 
larly go  in  succession;  and,  therefore,  if  a  lease  for  years 
he  made  to  the  Bishop  of  Oxford  and  his  successors,  in  such 
case  his  executors  or  administrators,  and  not  his  successors, 
shall  have  it.  For  the  word  successors,  when  applied  to  a 
person  in  his  political  capacity,  is  equivalent  to  the  word 
heirs  in  his  natural,  and  as  such  a  lease  for  years,  if  made 
to  John  and  his  heirs,  would  not  vest  in  his  heirs  but  his 
executors;, so  if  it  be  made  to  John,  Bishop  of  Oxford,  and 
his  successors,  who  are  the  heirs  of  his  body  politic,  it  shall 
still  vest  in  his  executors,  and  not  in  such  his  successors. 
The  reason  of  this  is  obvious:  for  besides  that  the  law 
looks  upon  goods  and  chattels  as  of  too  low  and  perishable 
a  nature  to  be  limited  either  to  heirs  or  such  successors  as 
are  equivalent  to  heirs,  it  would  also  follow  that  if  any 
such  chattel  interest,  granted  to  a  sole  corporation  and  his 
successors,  were  allowed  to  descend  to  such  successor,  the 
property  thereof  must  be  in  abeyance  from  the  death  of  the 
present  owner  until  the  successor  be  appointed;  and  this  is 
■contrary  to-  the  nature  of  a  chattel  interest,  which  can  never 
be  in  abeyance  or  without  an  owner,  but  a  man's  right 
therein,  when  once  suspended,  is  gone  forever.  [432]  This 
is  not  the  case  in  corporations  aggregate,  where  the  right  is 
uever  in  suspense,  nor  in  the  other  sole  corporations  before 
mentioned,  who  are  rather  to  be  considered  as  heads  of  an 
aggregate  body  than  subsisting  merely  in  their  owji  right. 
The  chattel  interest,  therefore,  in  such  a  case  is  really  and 
substantially  vested  in  the  hospital,  convent,  chapter,  or 
other  aggregate  body,  though  the  head  is  the  visible  person 
in  whose  name  every  act  is  carried  on,  and  in  whom  every 
interest  is  therefore  said,  in  point  of  form,  to  vest.  But 
the  general  rule  with  regard  to  corporations  merely  sole 
is  this,  that  no  chattel  can  go  to  or  be  acquired  by  them 
in  right  of  succession. 

Yet  to  this  rule  there  are  two  exceptions.  One  in  the 
case  of  the  king,  in  whom  a  chattel  may  vest  by  a  grant  of 
it  formerly  made  to  a  preceding  king  and  his  successors. 
The  other  exception  is  where,  by  a  particular  custom,  some 
2Hirticalar  corporations  sole  have  acquired  a  power  of  tak- 


3C2  ■  Of  Title  by  Marriage,  [Book  IT. 

ing  particular  chattel  interests  in  succession.  Wherefore^ 
upon  the  whole,  we  may  close  this  head  with  laying  down 
this  general  rule:  that  such  right  of  succession  to  chattels, 
is  universally  inherent  by  the  common  law  in  all  aggregate 
corporations,  in  the  king,  and  in  such  single  corporations  as 
represent  a  number  of  persons,  and  may  by  special  custom 
belong  to  certain  other  sole  corporations  for  some  particular 
purposes,  although  generally,  in  sole  corporations,  no  such 
right  can  exist.  [433] 

Yl.  A  sixth  method  of  acquiring  property  in  goods  and 
chattels  is  by  marriage,  whereby  those  chattels  which  be- 
longed formerly  to  the  wife  are  by  act  of  law  vested  in  the 
husband,  with  the  same  degree  of  property  and  with  the- 
same  powers  as  the  wife  when  sole  had  over  them.^ 

This  depends  entirely  on  the  notion  of  an  unity  of  person 
between  the  husband  and  wife,  it  being  held  that  they  are 
one  person  in  law,  so  that  the  very  being  and  existence  of 
the  woman  is  suspended  during  the  coverture,  or  entirely 
merged  or  incorporated  in  that -of  the  husband.  And 
hence  it  follows  that  whatever  personal  property  belonged 
to  the  wife  before  marriage,  is  by  marriage  absolutely 
vested  in  the  husband.  In  a  real  estate,  he  only  gains  a 
title  to  the  rents  and  profits  during  coverture,  for  that^ 
depending  upon  feodal  principles,  remains  entire  to  the 
wife  after  the  death  of  her  husband,  or  to  her  heirs  if  she 
dies  before  him,  unless,  by  the  birth  of  a  child,  he  becomes 
tenant  for  life  by  the  curtesy."*  But  in  chattel  interests  the 
sole  and  absolute  property  vests  in  the  husband,  to  be  dis- 
posed of  at  his  pleasure,  if  he  chooses  to  take  possession 
of  them;  for  unless  he  reduces  them  to  possession,  by  ex- 
ercising some  act  of  ownership  upon  them,  no  property 
vests  in  him,  but  they  shall  remain  to  the  wife  or  to  her 
representatives  after  the  coverture  is  determined. 

Tliere  is,  therefore,  a  very  considerable  difference  in  the 
acquisition  of  this  species  of  property  by  the  husband  ac- 

3.  The  rules  under  this  head  have  4.  Considered  ante. 

been   extensively   changed   by  s'atuta 
in  many  of  the  states.     Se«»  ante. 


Chap.  XXIX.]        Of  Title  sy  MARRrAGE.  363 

cording  to  the  subject-matter:  viz.  whether  it  be  a  chattel 
real  or  chattel  personal;  and,  of  chattels  personal,  Avhether 
it  be  in  possession  or  in  action  only.  [434]  A  chattel  real 
vests  in  the  husband,  not  absolutely,  but  siih  modo.  As,  in 
case  of  a  lease  for  years,  the  husband  shall  receive  all  the 
rents  and  profits  of  it,  and  may,  if  he  pleases,  sell,  surrender, 
or  dispose  of  it  during  the  coverture ;°  if  he  be  outlawed 
or  attainted,  it  shall  be  forfeited  to  the  king;^  it  is  liable  to 
execution  for  his  debts ;  and,  if  he  survives  his  wife,  it  is  to 
all  intents  and  purposes  his  own.  Yet  if  he  has  made  no 
disposition  thereof  in  his  lifetime,  and  dies  before  his  wife, 
he  cannot  dispose  of  it  by  will ;  for  the  husband  having 
made  no  alteration  in  the  property  during  his  life,  it  never 
was  transferred  from  the  wife,  but  after  his  death  she  shall 
remain  in  her  ancient  possession,  and  it  shall  not  go  to  his 
executors.  So  it  is  also  of  chattels  personal  (or  choses)  in 
action,  as  debts  upon  bond,  contracts,  and  the  like:  these 
the  husband  may  have  if  he  pleases;  that  is,  if  he  reduces 
them  into  possession  by  receiving  or  recovering  them  at 
law.  And  upon  such  receipt  or  recovery  thfey  are  abso- 
lutely and  entirely  his  own,  and  shall  go  to  his  executors  or 
administrators,  or  as  he  shall  bequeath  them  by  will,  and 
shall  not  revest  in  the  wife.  But  if  he  dies  before  he  has 
recovered  or  reduced  them  into  possession,  so  that  at  his 
death  they  still  continue  choses  in  action,  they  shall  survive 
to  the  wife,  for  the  husband  never  exerted  the  power  he  had 
of  obtaining  an  exclusive  property  in  them.'^  Thus  in  both 
these  species  of  property  the  law  is  the  same  in  case  the 
wife  survives  the  husband;  but  in  case  the  husband  sur- 
vives the  wife,  the  law  is  very  different  with  respect  to 

5.  Turner's  Case,  1  Vern.  7;  s.  c,  7.  See  Schuyler  v.  Hoyle,  5  John. 
1  Eq.  Cas.  Abr.  58;  Ewell's  Lead.  Ch.  19G;  Hayward  v.  Hayward,  20 
Oases  (1st  Ed.),  475;  Robertson  v.  Pick.  517;  Blount  v.  Bestland,  5  Ves. 
Norris,  11  Ad.  &  Ell.  N.  S.  916;  515;  Ewell's  Lead.  Cases,  357-386, 
Ewell's  Lead.  Cases,  478-487  and  408,  457  and  notes  treating  this  sub- 
notes.  Consult  the  local  statutes  as  ject  at  great  length.  The  rules  of  the 
the  common  law  on  this  subject  has  text  are  still  the  law  in  this  country, 
been  largely  changed  by  statute.  except   as  changed   by   statutes.     See 

6.  Outlawry  and  attainder  no  longer      ante,  and  notes, 
exist  in  this  country. 


3G4  Of  Title  by  Marriage.        "i       [Book  II. 

chattels  real  and  choses  in  action:  for  he  shall  have  the 
chattel  real  by  survivorship,  but  not  the  chose  in  action, 
except  in  the  case  of  arrears  for  rent  due  to  the  wife  before 
her  coverture,  which  in  case  of  her  death  are  given  to  the 
li^usbaud  by  statute  32  Hen.  VIII.  c.  37.  [435]  And  the  rea- 
son for  the  general  law  is  this,  that  the  husband  is  in  abso- 
lute possession  of  the  chattel  real  during  the  coverture  by  a 
kind  of  joint-tenancy  with  his  wife;  wherefore  the  law  will 
not  wrest  it  out  of  his  hands  and  give  it  to  her  representa- 
tives, though,  in  case  he  had  died  first,  it  would  have  survived 
to  the  w'ife,  unless  he  thought  proper  in  his  lifetime  to  alter 
the  possession.  But  a  chose  in  action  shall  not  survive  to 
him,  because  he  never  was  in  possession  of  it  at  all  during 
the  coverture,  and  the  only  method  he  had  to  gain  posses- 
sion of  it  was  by  suing  in  his  wife's  right;  but  as,  after  her 
death,  he  cannot  (as  husband)  bring  an  action  in  her  right, 
because  they  are  no  longer  one  and  the  same  person  in  law, 
therefore  he  can  never  (as  such)  recover  the  possession. 
But  he  still  will  be  entitled  to  be  her  administrator,  and 
may  in  that  capacity  recover  such  things  in  action  as  be- 
came due  to  her  before  or  during  the  coverture.* 

As  to  chattels  personal  (or  choses)  in  possession  which 
the  wife  hath  in  her  own  right,  as  ready  money,  jewels, 
household  goods,  and  the  like,  the  husband  hath  therein  an 
immediate  and  absolute  property,  devolved  to  him  by  the 
marriage,  not  only  potentially,  but  in  fact,  which  never  can 
again  revest  in  the  wife  or  her  representatives.^ 

In  one  particular  instance  the  wife  may  acquire  a  prop- 
erty in  some  of  her  husband's  goods,  w'liich  shall  remain  to 
her  after  his  death  and  not  go  to  his  executors.  These  are 
called  her  paraphernalia,  which  is  a  term  borrowed  from 
the  civil  law,  and  is  derived  from  the  Greek  language, 

8.  That  in  the  absence  of  statutory  310;  Buckley  v.  Collier,  1  Salk.  114 
provisions  to  the  contrary,  the  hus-  (wife's  earnings)  ;  Skillnian  v.  Skill- 
band  is  entitled  to  administer  on  the  man,  15  N.  J.  Eq.  478  (wife's  earn- 
estate  of  his  wife  is  well  settled.  ings)  ;  Ewell's  Lead.  Cases,  343-350 
Whitaker  v.  Whitaker,  6  John.  112;  and  notes.  This  rule  has  been 
Ewfll's  Lead.  Cases  (1st  Ed.),  513-  changed  by  statute  in  many  states. 
621  and  notes.  Consult  the  local  statutes.     See  ante. 

9.  Whitaker    v.    Whitaker,    1    Den. 


Chap.  XXIX.]        Of  Title  by  Judgment.  ^  365 

signifying  something  over  and  above  her  dower.  [436]  Our 
law  uses  it  to  signify  the  apparel  and  ornaments  of  the  wife 
suitable  to  her  rank  and  degree;  and  therefore  even  the 
jewels  of  a  peress  usually  worn  by  her  have  been  held  to  be 
paraphcnialia.  These  she  becomes  entitled  to  at  the  death 
of  her  husband,  over  and  above  her  jointure  or  dower,  and 
preferably  to  all  other  representatives.  Neither  can  the. 
husband  devise  by  his  will  such  ornaments  and  jewels  of 
his  wife,  though  during  his  life  perhaps  he  halth  the  power 
(if  unkindly  inclined  to  exert  it)  to  sell  them  or  give  them 
away.  But  if  she  continues  in  the  use  of  them  till  his  death, 
she  shall  afterwards  retain  them  against  his  executors  and 
administrators,  and  all  other  persons  except  creditors, 
where  there  is  a  deficiency  of  assets.  And  her  necessary 
apparel  is  protected  even  against  the  claim  of  creditors.^ 

VII.  A  judgment,  in  consequence  of  some  suit  or  action 
in  a  court  of  justice,  is  frequently  the  means  of  vesting  the 
right  and  property  of  chattel  interests  in  the  prevailing 
party.^  And  here  we  must  be  careful  to  distinguish  be- 
tween property,  the  right  of  which  is  before  vested  in  the 
party,  and  of  which  only  possession  is  recovered  by  suit  or 
action,  and  property  to  which  a  man  before  had  no  determi- 
nate title  or  certain  claim,  but  he  gains  as  well  the  right 
as  the  possession  by  the  process  and  the  judgment  of  the 
law.  Of  the  former  sort  are  all  debts  and  choses  in  action. 
But  there  is  also  a  species  of  property  to  which  a  man  has 
not  any  claim  or  title  whatsoever  till  after  suit  commenced 
and  judgment  obtained  in  a  court  of  law^;  where  the  right 
and  the  remedy  do  not  follow  each  other  as  in  common 
cases,  but  accrue  at  one  arid  the  same  time;  and  where, 
before  judgment  had,  no  man  can  saj^  that  he  has  any  abso- 
lute property,  either  in  possession  or  in  action.  [437]  Of 
this  nature  are, 

1.  Such  penalties  as  are  given  by  particular  statutes,  to 
be  recovered  on  an  action  popular;  or,  in  other  words,  to  be 

1.  Consult  the  local  statutes.  or  other  appropriate  method,  or  found 

2.  A  judgment  is  the  conclusion  of      by  verdict  or  its  equivalent.   See  post, 
the    law    pronounced   upon    the   facts      Book  3,  *395, 

admitted   in   the   record  by   demurrer 


3GG  Of  Title  by  Judgment.  [Book  II. 

recovered  by  him  or  them  that  will  sue  for  the  same.  Such 
as  the  penalty  of  500Z.,  which  those  persons  are  by  several 
acts  of  parliament  made  liable  to  forfeit  that,  being  in  par- 
ticular offices  or  situations  in  life,  neglect  to  take  the  oaths 
to  the  government,  —  which  penalty  is  given  to  him  or  them 
that  will  sue  for  the  same.  Now  here  it  is  clear  that  no 
particular  person,  A  or  B,  has  any  right,  claim,  or  demand, 
in  or  upon  this  penal  sum  till  after  action  brought;  for  he 
that  brings  his  action  and  can  hoiia  fide  obtain  judgment 
first,  will  undoubtedly  secure-  a  title  to  it  in  exclusion  of 
everybody  else.  He  obtains  an  inchoate  imperfect  degree 
of  property  by  commencing  his  suit,  but  it  is  not  consum- 
mated till  judgment;  for  it  any  collusion  appears  he  loses 
the  priority  he  had  gained.  But,  otherwise,  the  right  so 
attaches  in  the  first  informer  that  the  king  (who  before 
action  brought  may  grant  a  pardon  which  shall  be  a  bar 
to  all  the  world)  cannot,  after  suit  commenced,  remit  any- 
thing but  his  own  part  of  the  penalty.  For  by  commencing 
the  suit  the  informer  has  made  the  popular  action  his  owji 
private  action,  and  it  is  not  in  the  power  of  the  crown  or 
of  anything  but  parliament  to  release  the  informer's 
interest."^ 

2.  Another  species  of  property  that  is  acquired  and  lost 
by  suit  and  judgment  at  law  is  that  of  damages*  given  to 
a  man  by'  a  jury  as  a  compensation  and  satisfaction  for 

3.  See,  however,  Butler  v.  Palmer,  on  Torts  (Stiidonts'  Ed.),  126.  This 
1  Hill,  330;  Parmelee  v.  Lawrence,  is  the  rule  in  all  cases  of  contract, 
44  HI.  415;  Confiscation  Cases,  7  except  actions  for  breach  of  promise 
Wall.  454.  of  marriage,  and  in  most  actions  for 

4.  Damages  are  of  three  kinds,  torts.  Id.,  126.  Punitive,  exemplary 
nominal,  compensatory  and  punitive.  or  vindictive  damages  are  something 
Every  wrong  imports  a  dajnage;  and  given  in  addition  to  a-ctual  compen- 
if  none  are  proved,  nominal  damages  sation  for  the  purpose  of  punishment 
are  receivable.  See  the  leading  case  or  example:  and  may  be  awarded 
of  Ashby  v.  White,  Lord  Raymond,  wlicn  the  wrong  is  committed  TnaliQi- 
938;  1  Smitli's  Lead.  Cases,  *342  and  ously  or  with  an  evil  intrnt  or  is 
notes;  Cooley  on  Torts  (Students'  wanton,  deliberate  or  oppressive.  Id., 
Ed.),  124;   1  Sedg.  Dam.,  §  9S.  126.     See,  generally,  Cooley  on  Torts 

Compensatory  damages  are  such  as  (Students'  Ed.).  123-129;  Hale  on 
make  good  the  actual  loss  sustained  Damages;  Sedgwick  on  Damages  and 
by  the  wrong  complained  of.     Cooley      Sutherland  on  Damages. 


Ohap.  XXIX.]         Of  Title  by  Judomea't.  CG7  • 

some  injury  sustained,  as  for  a  battery,  for  imprisonment, 
for  slander,  or  for  trespass.  [438]  Here  the  plaintiff  has 
no  certain  demand  till  after  verdict;  but  when  the  jury  has 
assessed  his  damages,  and  judgment  is  given  thereupon, 
whether  they  amount  to  twenty  pounds  or  twenty  shillings, 
he  instantly  acquires,  and  the  defendant  loses  at  the  same 
time,  a  right  to  that  specific  sum.  It  is  true  that  this  is  not 
an  acquisition  so  perfectly  original  as  in  the  former  in- 
stance, for  here  the  injured  party  has  unquestionably  a 
vague  and  indeterminate  right  to  some  damages  or  other 
the  instant  he  receives  the  injury;  and  the  verdict  of  the 
jurors  and  judgment  of  the  court  thereupon  do  not  in  this 
case  so  properly  vest  a  new  title  in  him  as  fix  and  ascertain 
the  old  one;  they  do  not  give,  but  define,  the  right.  But, 
however,  though  strictly  speaking  the  primary  right  to  a 
satisfaction  for  injuries  is  given  by  the  law^  of  nature,  and 
the  suit  is  only  the  means  of  ascertaining  and  recovering 
that  satisfaction,  yet,  as  the  legal  proceedings  are  the  only 
visible  means  of  this  acquisition  of  property,  we  may  fairly 
enough  rank  such  damages  or  satisfaction  assessed  under 
the  head  of  property  acquired  by  suit  and  judgment  at  law. 
3.  Hitherto  also  may  be  referred,  upon  the  same  principle, 
all  title  to  costs  and  expenses  of  suit  which  are  often  arbi- 
trary, and  rest  entirely  on  the  determination  of  the  court 
upon  weighing  all  circumstances,  both  as  to  the  quantum 
and  also  (in  the  courts  of  equity  especially,  and  upon  mo- 
tions in  the  courts  of  law)  whether  there  shall  be  any  costs 
at  all.  [439]  These,  costs,  therefore,  when  given  by  the 
court  to  either  party,  may  be  looked  upon  as  an  acquisition 
made  by  the  judgment  of  law.^ 

5.  With   U8  costs   are  only  allowed      statute   or   perhaps   by   some   general 
in  actions  at  law  where  warranted  by      rule  of  court. 


368  Of  Title  by  Gift.  [Book  II. 

CHAPTEE  XXX. 

OF  TITLE  BY  GIFT,  GRANT,  AND  CONTRACT. 

VIII.  Gifts,  or  grants,  which  are  the  eighth  method  of 
transferring  personal  property,  are  thus  to  be  distinguished 
from  each  other,  that  gifts  are  always  gratuitous,  grants  are 
upon  ^me  consideration  or  equivalent;  and  they  may  be 
divided,  with  regard  to  their  subject-matter,  into  gifts  or 
grants  of  chattels  real,  and  gifts  or  grants  of  chattels  per- 
sonal. [440]  Under  the  head  of  gifts  or  grants  of  chattels 
real  may  be  included  all  leases  for  years  of  land,  assignments, 
and  surrenders  of  those  leases,  and  all  the  other  methods 
of  conveying  an  estate  less  than  freehold  which  were  con- 
sidered in  the  Twentieth  Chapter  of  the  present  Book; 
though  these  very  seldom  carry  the  outward  appearance  of 
a  gift,  however  freely  bestowed,  being  usually  expressed  to 
be  made  in  consideration  of  blood,  or  natural  affection,  or 
of  five  or  ten  shillings  nominally  paid  to  the  grantor;  and 
in  case  of  leases,  always  reserving  a  rent,  though  it  be  but 
a  peppercorn,  —  any  of  which  considerations  will  in  the  eye 
of  the  law  convert  the  gift,  if  executed,  into  a  grant;  if  not 
executed,  into  a  contract. 

Grants  or  gifts  of  chattels  personal  are  the  act  of  trans- 
ferring the  right  and  the  possession  of  them,  whereby  one 
man  renounces  and  another  man  immediately  acquires  all 
title  and  interest  therein,  w^hich  may  be  done  either  in  writ- 
ing or  by  word  of  mouth,  attested  by  sufficient  evidence,  of 
which  the  delivery  of  possession  is  the  strongest  and  most 
essential.  [441]  But  this  conveyance,  w^hen  merely  volun- 
tary, is  somewhat  suspicious,  and  is  usually  construed  to 
be  fraudulent  if  creditors  or  others  become  sufferers  there- 
by. And  by  statute  13  Eliz.  c.  5,  every  grant  dr  gift  of 
chattels,  as  well  as  lands,  with  an  intent  to  defraud  cred- 
itors or  others,  shall  be  void  as  against  such  persons  to 
whom  such  fraud  would  be  prejudicial,  but  as  against  the 
grantor  himself  shall  stand  good  and  effectual.^ 

1.  See  ante,  note. 


Chap.  XXX.]  Of  Title  by  Conteact. 


SG9 


A  true  and  proper  gift  or  grant  is  always  accompanied 
with  delivery  of  possession,  and  takes  effect  immediately; 
as. if  A  gives  to  B  1001.  or  a  flock  of  sheep,  and  puts  him 
in  possession  of  them  directly,  it  is  then  a  gift  executed  in 
the  donee,  and  it  is  not  in  the  donor's  power  to  retract  it, 
though  he  did  it  without  any  consideration  or  recompense, 
unless  it  be  prejudicial  to  creditors,  or  the  donor  were  under 
any  legal  incapacity,  as  infancy,  coverture,  duress,  or  the 
like,  or  if  he  were  drawn  in,  circumvented,  or  imposed  upon 
by  false  pretenses,  ebriety,  or  surprise.  But  if  the  gift 
does  not  take  effect  by  delivery  of  immediate  possession, 
it  is  then  not  properly  a  gift,  but  a  contract;^  and  this  a 
man  cannot  be  compelled  to  perform  but  upon  good  and 
sufficient  consideration,  as  we  shall  see  under  our  next 
division.  [442] 

IX.  A  contract,  which  usually  conveys  an  interest  merely 
in  action,  is  thus  defined:  "An  agreement  upon  sufficient 
consideration  to  do  or  not  to  do  a  particular  thing. ' '  ^    From 


2.  Tiffany  on  Sales  (2d  Ed.),  12 
and  cases  cited;   2  Kent  Com.  438. 

Gifts  are  of  two  sorts,  inter  vivos, 
or  between  the  living,  and  causa  mor- 
tis, by  reason  of  death.  As  stated  in 
the  text,  there  must  be  an  actual  de- 
livery in  the  case  of  gifts  inter  vivos 
or  the  title  does  not  pass.  A  mere 
intention  or  promise  will  not  suffice. 
2  Kent  Com.  *438.  The  delivery 
must  be  according  to  the  nature  of 
the  thing.  If  it  be  not  capable  of 
actual  delivery,  there  must  be  some 
act  equivalent  to  it.  There  may  be 
a  constructive  or  symbolical  delivery. 
2  Kent  Com.  *439.  A  chose  in  action 
must  be  assigned.  Id. ;  Priot  v.  San- 
derson,  1   Dev.    (N.   C.)    309. 

Tlie  gift  when  perfected  by  delivery 
and  acceptance  is  irrevocable,  unless 
in  fraud  of  creditors.  2  Kent  Com. 
440. 

Gifts  causa  mortis  arc  conditional 
like  legacies  and  must  be  made  by  the 
donor  in  his  last  illness  or  in  the  con- 

24 


templation  and  expectation  of  death. 
If  the  donor  recovers,  the  gift  bs- 
comes  void  and  he  may  revoke  it  any 
time  before  death.  Delivery  is  neces- 
sary as  in  the  case  of  gifts  inter  vivos. 
2  Kent  Com.  *444-446  and  cases  cited. 
3.  This  is  the  usual  definition  of 
a  simple  contract.  Mr.  Clark  in  his 
work  on  Contracts,  defines  a  contract 
"  in  its  broadest  sense  as  an  agree- 
ment whereby  one  or  more  of  the 
parties  acquire  a  right  in  rem  or  in 
personam,  in  relation  to  some  person, 
thing,  act  or  forbearance."  Clark  on 
Contracts  (3d  Ed.),  1.  "A  contract 
in  its  narrower  and  more  proper  sense 
is  an  executory  contract.  It  is  the 
result  of  the  concurrence  of  agreement 
and  obligation,  and  may  be  defined 
as  an  agreement  enforcible  at  law, 
made  between  two  or  more  persons, 
by  which  rights  are  acquired  by  one 
or  more  to  acts  or  forbearances  on 
the  part  of  the  other  or  others.** 
Id.,  2. 


370  Of  Title  by  Contract.  [Book  TI. 

which  definition  there  arises  three  points  to  be  contemplated 
in  all  contracts :  1.  The  agreement;  2.  The  consideration: 
and  3.  The  thing  to  be  done  or  omitted,  or  the  different 
species  of  contracts. 

First,  then,  it  is  an  agreement,  a  mutual  bargain  or  con- 
vention; and  therefore  tliere  must  at  least  be  two  contract- 
ing parties  of  sufficient  ability  to  make  a  contract :  as  where 
A  contracts  with  B  to  pay  him  100/.,  and  thereby  transfers 
a  property  in  such  sum  to  B.  Which  property  is  however 
not  in  possession,  but  in  action  merely,  and  recoverable  by 
suit  at  law ;  wherefore  it  could  not  be  transferred  to  another 
person  by  the  strict  rules  of  the  ancient  common  law,  for 
no  chose  in  action  could  be  assigned  or  granted  over,  be- 
cause it  was  thought  to  be  a  great  encouragement  to  liti- 
giousness  if  a  man  were  allowed  to  make  over  to  a  stranger 
his  right  of  going  to  law.  But  this  nicety  is  now  disre- 
garded, though,  in  compliance  with  the  ancient  principle, 
the  form  of  assigning  a  chose  in  action  is  in  the  nature  of  a 
declaration  of  trust  and  an  agreement  to  permit  the  assignee 
to  make  use  of  the  name  of  the  assignor,  in  order  to  recover 
the  possession.  And,  therefore,  when  in  common  accepta- 
tion a  debt  or  bond  is  said  to  be  assigned  over,  it  must  still 
be  sued  in  the  original  creditor's  name,  the  person  to  whom 
it  is  transferred  being  rather  an  attorney  than  an  assignee.* 
But  the  king  is  an  exception  to  this  general  rule,  for  he 
might  always  either  grant  or  receive  a  chose  in  action  by 
assignment,  and  our  courts  of  equity,  considering  that  in  a 
commercial  country  almost  all  personal  property,  must 
necessarily  lie  in  contract,  will  protect  the  assignment  of  a 
chose  in  action  as  much  as  the  law  will  that  of  a  chose  in 
possession. 

This  contract  or  agreement  may  be  either  express  or  im- 
plied. [443]  Express  contracts  are  where  the  terms  of  the 
agreement  are  openly  uttered  and  avowed  at  the  time  of 
the  making,  as  to  deliver  an  ox,  or  ten  loads  of  timber,  or 
to  pay  a  stated  price  for  certain  goods.  Implied  are  such 
as  reason  and  justice  dictate,  and  which,  therefore,  the  law 
presumes  that  every  man  undertakes  to  perform.     As,  if  I 

4.  See  Assignment,  considered  ante. 


Chap.  XXX.]  Of  Title  by  Coi^tkact.  371 

employ  a  person  to  do  any  business  for  me,  or  perform  any 
work,  the  law  implies  that  I  undertook,  or  contracted  to 
pay  him  as  much  as  his  labor  deserves.  If  I  take  up  wares 
from  a  tradesman  without  any  agreement  of  price,  the  law 
concludes  that  I  contracted  to  pay  their  real  value.^  And 
there  is  also  one  species  of  implied  contracts  which  runs 
through  and  is  annexed  to  all  other  contracts,  conditions, 
and  covenants,  viz.,  that  if  I  fail  in  my  part  of  the  agree- 
ment, I  shall  pay  the  other  party  such  damages  as  he  has 
sustained  by  such  my  neglect  or  refusal.^ 

A  contract  may  also  be  either  executed,  as  if  A  agrees  to 
change  horses  with  B,  and  they  do  it  immediately,  in  which 
case  the  possession  and  the  right  are  transferred  together, 
or  it  may  be  executory,  as  if  they  agree  to  change  next  week. 
Here  the  right  only  vests,  and  their  reciprocal  property  in 
each  other's  horse  is  not  in  possession,  but  in  action;  for  a 
contract  executed  (which  differs  nothing  from  a  grant)  con- 
veys a  chose  in  possession;  a  contract  executor jj  conveys  only 
a  chose  in  action. 

Having  thus  shown  the  general  nature  of  a  contract,  we 
are,  secondly,  to  proceed  to  the  consideration  upon  which  it 
is  founded,  or  the  reason  which  moves  the  contracting  party 
to  enter  into  the  contract.  [44:4]  "  It  is  an  agreement  upon 
sufficient  consideration.^^  This  thing,  which  is  the  price  or 
motive  of  the  contract,  we  call  the  consideration;  and  it 
must  be  a  thing  lawful  in  itself,  or  else  the  contract  is  void.'^ 
A  good  consideration  is  that  of  blood  or  natural  affection 
between  near  relations;  the  satisfaction  accruing  from 
which  the  law  esteems  an  equivalent  for  whatever  benefit 
may  move  from  one  relation  to  another.  This  considera- 
tion may  sometimes,  however,  be  set  aside,  and  the  contract 
becomes  void,  when  it  tends  in  its  consequences  to  defraud 
creditors  or  other  third  persons  of  their  just  rights.  But 
a  contract  for  any  valuable  consideration,  as  for  marriage, 

6.  As  much  as  they  are  reasonably  from  the   part  which  is  bad,  but  not 

■worth.  otherwise.     See,   generally,  as   to   the 

6.  See  ante,  note  on  Damages.  effect    of    illegality   on    the    contract, 

7.  Where  an  agreement  is  illegal  in  Clark  on  Contracts   (3d  Ed.),  405-432 
part  only,  the  part  which  is  good  may  and  cases  in  notes. 

be    enforced,    if    it    can    be    separated 


372  Of  Title  by  Contract.  [Book  II. 

for  money,  for  work  done,  or  for  other  reciprocal  contracts, 
can  never  be  impeached  at  law,  and  if  it  be  of  a  sufficient 
adequate  value  is  never  set  aside  in  equity;^  for  the  person 
contracted  with  has  then  given  an  equivalent  to  recompense, 
and  is  therefore  as  much  an  owner  or  a  creditor  as  any  otlier 
person. 

A  consideration  of  some  sort  or  other  is  so  absolutely 
necessary  to  the  forming  of  a  contract,  that  a  nudum 
pactum  [being  a  simple  contract,  for  in  a  deed  a  considera- 
tion is  conclusively  presumed],  or  agreement  to  do  or  pay 
any  thing  on  one  side,  without  any  compensation  on  the 
other,  is  totally  void  in  law,  and  a  man  cannot  be  compelled 
to  perform  it."  But  any  degree  of  reciprocity  will  prevent 
the  pact  from  being  nude;  nay,  even  if  the  thing  be  founded 
on  a  prior  moral  obligation  (as  a  promise  to  pay  a  just  debt, 
though  barred  by  the  statute  of  limitations),  it  is  no  longer 
nudum  pactum.^  The  rule  does  not  hold  in  some  cases, 
where  the  promise  is  authentically  proved  by  written  docu- 
ments. [446]  For  if  a  man  enters  into  a  voluntary  bond, 
or  gives  a  promissory  note,  he  shall  not  be  allowed  to  aver 
the  want  of  a  consideration  in  order  to  evade  the  payment, 
for  every  bond  from  the  solemnity  of' the  instrument,  and 
every  note'  from  the  subscription  of  the  drawer  [print a 
facie  only  in  the  latter  case  as  between  maker  and  payee] 
carries  with  it  an  internal  evidence  of  a  good  consideration. 

8.  See,  however,  the  preceding  note.  sutlVred  or  undertaken  upon  like  re- 
Fraud,  duress,  infancy,  mistake  and  quest  by  the  other.  See  Clark  on 
imany  other  things  may  constitute  a  Contracts  (3d  Ed.),  133. 
defence.  Clark  on  Contracts  (3d  1.  A  mere  moral  obligation  is  not 
Ed.),  272,  245,  297,  190  and  cases  a  sufficient  consideration  to  support 
cited  in  notes.  a  promise  unless  it  is  based  upon  a 
9  The  author  refers  to  simple  con-  preceding  legal  obligation  which 
tracts,  for  a  seal  at  common  law  con-  would  be  <  nforcible  but  for  the  opera- 
plusively  presumes  a  consideration.  tion  of  some  positive  rule  of  law,  e.  g., 
A  valuable  consideration  is  necessary  the  bar  of  the  Statute  of  Limitations, 
to  support  a  simple  contract.  It  may  See  note  to  Wennell  v.  Adney,  3  B.  & 
be  defined  as  some  right,  interest,  P  352;  Eastwood  v.  Kenyon,  11  Adol. 
profit  or  benefit  accruing  upon  re-  &  Ell.  438;  Clark  on  Contracts  (3d 
quest,  express  or  implied  to  one  Ed.),  136;  Mills  v.  Wyman,  3  Pick, 
party,  or  some  forbearance,  detri-  207. 
ment,    loss    or    responsibility    given,  '   '  '  - 


Chap.  XXX.]  Of  Title  by  Contract.  373 

Courts  of  justice  will  therefore  support  them  both  as 
against  the  contractor  himself,  but  not  to  the  prejudice  of 
creditors,  or  strangers  to  the  contract.^ 

We  are  next  to  consider,  tliirdJy,  the  thing  agreed  to  be 
done  or  omitted.  ''A  contract  is  an  agreement  upon  suffi- 
cient consideration  to  do  or  not  to  do  a  particular  thing." 
The  most  usual  contracts,  whereby  the  right  of  chattels  per- 
sonal may  be  acquired  in  the  laws  of  England,  are  1.  That 
of  sale  or  exchange;  2.  That  of  bailment;  3.  That  of  hiring 
and  horrowing;  4,  That  of  debt. 

1.  Sale,  or  exchange,  is  a  transmutation  of  property  from 
one  man  to  another,  in  consideration  of  some  price  or  recom- 
pense in  value,  for  there  is  no  sale  without  a  recompense: 
there  must  be  quid  pro  quo.  If  it  be  a  commutation  of  goods 
fof  goods,  it  is  more  properly  an  exchange;  but  if  it  be  a 
transferring  of  goods  for  money,  it  is  called  a  sale.  With 
regard  to  the  law  of  sales  and  exchanges,  there  is  no  differ- 
ence. [447]  I  shall  therefore  treat  of  them  both  under  the 
denomination  of  sales  only. 

Where  the  vendor  hath  in  himself  the  property  of  the 
goods  sold,  he  hath  the  liberty  of  disposing  of  them  to 
whomsoever  he  pleases,  at  any  time  and  in  any  manner, 
unless  judgment  has  been  obtained  against  him  for  a  debt 
or  damages,  and  the  writ  of  execution  is  actually  delivered 
to  the  sheriff.  For  then,  by  the  statute  of  frauds,  the  sale 
shall  be  looked  upon  as  fraudulent,  and  the  property  of  the 
goods  shall  be  bound  to  answer  the  debt  from  the  time  of 
delivering  the  writ.  Formerly  it  was  bound  from  the  teste, 
or  issuing  of  the  writ,  and  any  subsequent  sale  was  fraud- 
leat;  but  the  law  was  thus  altered  in  favor  of  purchasers, 
though  it  still  remains  the  same  between  the  parties.  And 
therefore  if  a  defendant  dies  after  the  awarding  and  before 
the  delivery  of  the  writ,  his  goods  are  bound  by  it  in  the 
hands  of  his  executors.^ 

2.  In  the  hands  of  a  bona  fide  pur-  By  the  common  hiw  a  seal  is,  as 
chaser  the  defence  of  want  of  con-  between  the  parties,  conchisive  evi- 
sideration  is  not  good;  but  as  be-  dence  of  a  consideration.  This  rule 
tween  the  immediate  parties  to  a  has  been  changed  by  statute  in  many 
promissory   note   want   of   a  valuable  states. 

touiideration  is  a  good  defence.  3.  In  some  states  the  goods  are  sub- 


374 


Of  Title  by  Coxtiiact. 


[Book  U, 


If  a  man  agrees  with  another  for  goods  at  a  certain  price 
he  may  not  carry  them  away  before  he  hath  paid  for  them, 
for  it  is  no  sale  without  payment,  unless  the  contrary  be 
expressly  agreed."*    And  therefore,  if  the  vendor  says  the 


jcct  to  the  writ  from  the  time  of  its 
delivery  to  the  sheriff  for  service,  and 
in  others  only  from  the  time  of  its 
levy.  Consult  the  local  statutes  and 
books  on  practice. 

4.  It  has  long  been  settled  that  de- 
livery to  an  agent  of  the  vendee  (and 
for  this  purpose  common  carriers, 
packers,  qnd  wharfingers,  are  consid- 
ejed  to  stand  in  that  character)  is 
for  most  purposes  a  delivery  to  the 
vendee  himself.  But  this  species  of 
delivery  affords  a  security  to  the 
vendor,  upon  credit,  which  does  not 
exist  wh^re  the  delivery  is  actually 
made  to  the  vendee  himself;  for  if 
the  vendor  discover  that  the  vendee 
is  insolvent,  or  has  become  bankrupt, 
he  may  seize  upon  the  goods  so  sold 
upon  credit,  and  delivered  into  the 
hands  of  such  carrier,  etc.,  at  any 
time  before  their  actual  and  complete 
delivery  to  the  vendee.  This  branch 
of  the  law  is  called  stoppage  in  tran- 
situ, and  though  not  referred  to  in 
the  text,  may  be  properly  stated  in 
this  place,  from  its  importance  in  the 
concirns  of  trade  and  commerce.  This 
law  is  founded  upon  an  equitable 
right  in  the  vendor  to  detain  the 
goods  until  the  price  be  paid  or  ten- 
dered, for  stopi>age  in  transitu  does 
not  rescind  the  contract  of  sale  ( 1 
Atk.  245,  3  T.  R.  466.  6  East.  27); 
and  if  the  vendor  afterwards  offer  to 
deliver  them,  he  may,  unless  he  has 
resold  them,  recover  the  pric?  which 
he  could  not  do  if  by  stopping  in 
transitu  the  sale  was  rescinded.  1 
Camp.  109;  6  Taunt.  162.  The  right 
extends  to   every   case  in  which    the 


contract  is  in  effect  a  sale,  and  the 
consignor  substantially  the  vendor  of 
the  goods.  3  East,  93;  Anib.  399; 
3  T.  R.  783.  It  extends  also  to  con- 
tracts of  exchange,  as  to  an  agree- 
ment between  consignor  and  consignee 
that  the  latter  shall  return  another 
commodity  of  equal  value  in  payment, 
and  the  fulfilment  of  which  engage- 
ment is  rendered  hazardous  by  his  in- 
solvency. Sittings  post  M.  Term, 
Guildhall,  1822;  3  Ch.  C.  L.  346.  The 
consignor  of  goods  for  sale  on  the 
joint  account  of  himself  and  the  con- 
signee, may  exercise  this  right  in  the 
event  of  the  bankruptcy  or  insolvency 
of  the  latter  (6  East,  371)  :  but  it  does 
not  arise  between  principal  and  fac- 
tor, for  the  property  is  never  devested 
out  of  the  principal,  and  the  factor 
as  against  him  has  only  a  right  of 
lien  upon  the  goods,  and  he  cannot, 
after  parting  with  them,  repossess 
himself  of  them  while  in  transitu.  1 
East,  4;  2  New.  R.  64.  Nor  can  the 
surety  for  the  payment  of  the  price 
of  goods,  by  the  vendee,  though  he 
may  have  accepted  the  bills  drawn 
upon  him  by  the  consignee  for  that 
purpose,  stop  the  goods  in  transitu. 
1  Bos.  &  Pul.  563.  If  a  party,  being 
indebted  to  another,  on  the  balance 
of  accounts,  including  bills  of  ex- 
change running  accepted  by  the  lat- 
ter, consign  goods  to  him  on  account 
of  this  balance,  the  consignor  has  no 
right  to  stop  them  in  transitu,  u|xm 
the  consignee  becoming  insolvent  be- 
fore the  bills  are  paid.  4  Campb.  31. 
If  a  sale  be  legalized  by  license,  and 
the  vendor  be  an  alien  enemy,  he  may 


CiTAP.  XXX.]  Of  Title  by  Contract. 


375 


price  of  a  beast  is  four  pounds,  and. the  vendee  says  he  will 
give  four  pounds,  the  bargain  is  struck,  and  they  neither 
of  them  are  at  liberty  to  be  off,  ijrovided  immediate  p^^ses- 


stop  the  goods  in  transitu  (15  East, 
419)  ;  and  any  authorized  agent  of  the 
consignor  may  exercise  the  right.    See 

1  Canipb.  369.  Tliough  the  consign- 
ment must  be  on  credit,  at  least  for 
some  part  of  the  price,  yet  partial 
payment,  acceptance  of  bills  on  ac- 
count of,  and  not  as  actual  payment, 
or  the  vendor's  being  indebted  to  the 
vendee  in  part  of  the  value,  will  not 
defeat  the  right  to  resume  possession 
before  actual  delivery  to  the  vendee. 
7  T.  R.  440,  64;  3  East,  93;  2  Vern. 
203.  It  is  necessary  that  the  con- 
signee should  become  bankrupt  or  be 
insolvent,  for  the  vendor  to  exercise 
this  right.  6  Robinson  Ad.  R.  321. 
It  is  not  necessary  that  the  vendor, 
to  exercise  this  right  of  stoppage, 
should  actually  take  possession  of  the 
property  consigned  by  corporal  touch; 
he  may  put  in  his  claim  or  demand 
of  his  right  to  the  goods  in  transitu, 
either  verbally  or  in  writing,  and  it 
will  be  equivalent  in  law  to  an  actual 
stoppage  of  the  goods,  provided  it  be 
made  before  the  transit  has  expired. 

2  B.  &  P.  457,  462;  2  Esp.  R.  613; 
Co.  J3.  L.  494;  1  Atk.  245;  Amb.  399; 

3  East,  394.  This  right  may  be  exer- 
cised by  making  out  a  new  invoice  or 
bill  of  lading  (Holt,  C.  N.  P.  338)  ;  but 
such  a  claim  on  the  part  of  the  con- 
signee would  not  be  sufficient  to  de- 
vest the  former  of  his  right.  2  Esp. 
613:  5  East,  175;  14  East,  308.  The 
iransitus  in  goods  conUnues  till  there 
has  been  an  actual  delivery  to  the 
vendee  or  his  agent  expressly  author- 
ized for  that  purpose,  with  the  ex- 
press or  implied  consent  of  the  vendor 
to  sanction  such  delivery.  3  T.  R. 
466;    5    East,    181.      The    deliviry    of 


goods  to  the  master  on  board  a  ship 
wholly  chartered  by  the  consignee,  is 
not  such  a  delivery  to  the  vendee  as 
to  put  an  end  to  the  transitus;  for 
th^  master  is  a  carrier  of  both  con- 
signor and  consignee;  and  till  a  ship 
is  actually  at  the  end  of  her  voyage, 
the  right  of  stoppage  in  transitu  con- 
tinues; and  where  a  ship  came  into 
port  without  performing  quarantine, 
when  she  ought  to  have  done  so,  and 
the  assignees  of  the  consignee,  who 
had  become  bankrupt,  took  possession 
of  tlie  goods,  and  the  ship  was  ordered 
out  of  port  to  perform  quarantine, 
where  an  agent  of  the  consignor 
claimed  the  goods  on  behalf  of  his 
principal,  it  was  held  that  the  con- 
signor had  properly  exercised  and 
might  claim   a   stoppaga   in  transitu. 

1  Esp.  310.  And  goods  deposited  in 
the  king's  warehouses  under  26  Geo. 
III.,  c.  59,  may  be  stopped  in  tran- 
situ, though  they  have  been  claimed 
by  the  consignee.     2  Esp.  663. 

On  the  other  hand,  the  transitus 
may  be  determined  by  delivery  of  the 
key  of  the  warehouse  where  the  goods 
are  deposited  to  the  vendee  (3  T.  R. 
464,  8  T.  R.  199)  ;  or  payment  of  rent 
for  such  warehouse  to  the  vendor,  or 
to  the  wharfinger  with  the  vendor's 
privity.  1  Campb.  452;  2  Camp.  243;  1 
Marsh.  257,  8.  And  in  all  similar  cases 
of  constructive  delivery  and  accept- 
ance, the  right  to  stoppage  in  tran- 
situ is  at  an  end.     See  7  Taun.  278; 

2  Bar.  &  Cres.  540:  1  Ryan  &  Moody, 
N.  P.  C.  6,  and  3  Chitty's  Com.  L. 
340.  See,  also,  Tiffany  on  Sales  (2d 
Ed.),  322-338  and  notes,  where  the 
cases  are  collected. 


37G        •       •-  Qp  Xjtle  by  Contract.  [Book  IL 

sion  be  tendered  by  the  other  side.  But  if  neither  the 
money  be  paid  nor  the  goods  delivered,  nor  tender  made, 
nor  any  subsequent  agreement  be  entered  into,  it  is  no  con- 
tract, and  the  owner  may  dispose  of  the  goods  as  he  pleases. 
But  if  any  part  of  the  price  is  paid  down,  if  it  be  but  a 
penny,  or  any  portion  of  the  goods  delivered  by  way  of 
earnest,  the  property  of  the  goods  is  absolutely  bound  by 
it;  and  the  vendee  may  recover  the  goods  by  action,  as  well, 
as  the  vendor  may  the  price  of  them.  [448]  And  such  re- 
gard does  the  law  pay  to  earnest  as  an  evidence  of  a  con- 
tract, that,  by  the  same  statute,  29  Car.  IT.  c.  3,^  no  contract 
for  the  sale  of  goods,  to  the  value  of  ten  pounds  or  more, 
shall  be  valid  unless  the  buyer  [accepts  and]  actually  re- 
ceives part  of  the  goods  sold,  by  way  of  earnest  on  his  part, 
unless  he  gives  part  of  the  price  to  the  vendor  by  way  of 
earnest  to  bind  the  bargain,  or  in  part  of  payment;  or  unless 
some  note  in  writing  be  made  and  signed  by  the  party  or 
his  agent  who  is  to  be  charged  with  the  contract.  And  with 
regard  to  goods  under  the  value  of  ten  pounds  no  contract 
or  agreement  for  the  sale  of  them  shall  be  valid  unless  the 
goods  are  to  be  delivered  within  one  year,  or  unless  the 
contract  be  made  in  writing,  and  signed  by  the  party  or 
his  agent  who  is  to  be  charged  therewith." 

As  soon  as  the  bargain  is  struck,  the  property  of  the  goods 
is  transferred  to  the  vendee,  and  that  of  the  price  to  the 
vendor;'^  but  the  vendee  cannot  take  the  goods  until  he 
lenders  the  price  agreed  on.  But  if  he  tenders  the  money  to 
the  vendor,  and  he  refuses  it,  the  vendee  may  seize  .the 
goods,  or  have  an  action  against  the  vendor  for  detaining 
them.  And  by  a  regular  sale,  without  delivery,  the  prop- 
erty is  so  absolutely  vested  in  the  vendee,  that  if  A  sells  a 

5.  Called  the  Statute  of  Frauds.  Mexico,  North   Carolina,  Ohio,  Penn- 

6.  This  section  (17)  of  the  statute  sylvania,  Khode  Island,  Tennessee, 
has  been  re-enacted  in  substance  in  Texas,  Virginia  and  West  Virginia, 
most  of  the  states,  but  not  in  all.  Tiffany  on  Sales,  63  note.  See,  gen- 
C'onsult  the  local  statutes.  See  Tif-  erally,  Browne  on  the  Statute  of 
fany  on  Sales  (2d  Ed.),  62;  Clark  Frauds  (5th  Ed.,  1895),  and  the 
on   Contracts    (3d   Ed).    121   et   seq.  works  above  cited. 

It  is  not  in  force  in  Illinois,  Alabama,  7.  Tiffany   on    Sales    (2d    Ed.),    2, 

Delaware  Kentucky,  Louisiana,  New      119. 


Chap.  XXX.]  Of  Title  by  Contract.  ~  377 

horse  to  B  for  ten  pounds  and  B  pays  him  earnest,  or  signs 
a  note  in  writing  of  the  bargain,  and  afterwards,  before 
the  delivery  of  the  horse,  or  money  paid,  the  horse  dies  in 
the  vendor's  custody,  still  he  is  entitled  to  the  money,  be- 
cause, by  the  contract  the  property  was  in  the  vendee.  [449] 
Thus  may  property  in  goods  be  transferred  by  sale,  where 
the  vendor  hath  such  property  in  himself. 

But  property  may  also  in  some  cases  be  transferred  by 
sale,  though  the  vendor  hath  none  at  all  in  the  goods.  The 
general  rule  of  law  is,  that  all  sales  and  contracts  of  any- 
thing vendible,  in  fairs  or  markets  overt ^  (that  is,  open), 
shall  not  only  be  good  between  the  parties,  but  also  be  bind- 
ing on  all  those  that  have  any  right  or  property  therein. 
But  if  my  goods  are  stolen  from  me,  and  sold,  out  of  market 
overt,  my  property  is  not  altered,  and  I  may  take  them 
wherever  I  find  them. 

By  the  civil  law  an  implied  warra,nty  was  annexed  to 
every  sale  in  respect  to  the  title  of  the  vendor,  and  so,  too^ 
in  our  law  a  purchaser  of  goods  and  chattels  may  have  a 
satisfaction  from  the  seller,  if  he  sells  them  as  his  own  and 
the  title  proves  deficient,  without  any  express  warranty 
for  that  purpose.^  [451]  But  with  regard  to  the  goodness 
of  the  wares  so  purchased,  the  vendor  is  not  bound  to 
answer,  unless  he  expressly  warrants  them  to  be  sound  and 

8.  Tiffany   on   Sales    {2d  Ed.),  26.  erty,    holding    under    an    unrecorded 

As  a  general  rule  no  one  can  con-  deed,  may  lose  his  title  by  the  prior 

vey  a  greater  title  than  he  has.    Sales  record  of  a  subsequent  deed  to  a  hona 

in  market  overt  were  an  exception  at  fide   purchaser   without   notice.       See 

common    law,    though    not   applicable  the    recording    lavvs    of    the    various 

to  the  United  States.  states. 

A  bona  fide  purchaser  without  no-  Again,  one  may  estop  himself  from 

lice,    of    bank    notes,    and    negotiable  claiming   his   own   personal   property, 

paper     before    maturity,     constitutes  if  he  suflfers  another  to  sell  it  as  his 

another    exception.      See    the    leading  own  to  a  bona  fide  purchaser.     There 

case  of  Miller  v.  Race,  1  Burr.  452;  may  be  other  exceptions   arising  un- 

1  Smith's  Lead.  Cases,  *597  and  notes,  der  statutes.     See.  generally.  Tiffany 

A  purchaser  of  goods  whose  title  is  on    Sales    (2d   Ed.),    26   et   seq.    and 

defeasible  by  fraud  may  also  convey  notes. 

a  good  title  to  a  bona  fide  purchaser  9.  Tiffany  on  Sales    (2d  Ed.),  242, 

without  notice  of  the  fraud.  243    and   cases    cited. 

Again,  the  purchaser  of  real  prop- 


378 


Of  Title  by  ConteaCt. 


[Book  IT. 


good,  or  unless  he  knew  them  to  be  otherwise,  and  hath 
used  any  art  to  disguise  them,  or  unless  they  turn  out  to  be 
different  from  what  he  represented  tbem  to  the  buyer,^ 

2.  Bailment  is  a  delivery  of  goods  in  trust,  upon  a  con- 
tract expressed  or  implied  that  the  trust  shall  be  faithfully 
executed  on  the  part  of  the  bailee.^     As  if  cloth  be  delivered 


1.  There  is  an  implied  warranty  of 
quality  or  fitness,  (1)  where  the 
buyer  relying  on  the  seller's  skill  and 
judgment,  buys  goods  for  a  particular 
purpose  made  known  to  the  vendor; 
(2)  where  the  goods  are  bought  by 
description  from  a  seller  dealing  in 
Buch  goods  and  the  buyer  has  no  op- 
portunity to  examine  them;  (3)  where 
provisions  are  sold  by  a  dealer  for 
immediate  consumption.  Tiffany  on 
Sales  (2d  Ed.),  352  et  seq.  and  notes. 

2.  The  elaborate  judgment  of  Lord 
Holt  in  the  celebrated  case  of  Coggs 
V.  Bernard  (Lord  Ray,  909;  1  Smith's 
Lead.  Cases,  *283),  contains  the  first 
well-ordered  exposition  of  the  Eng- 
lish law  of  bailments,  and  was  im- 
ported by  him  into  the  common  law 
from  the  Roman  civil  law.  Since 
then  it  has  grown  to  enormous  pro- 
portions and  includes  not  only  ordi- 
nary bailments,  but  the  law  of  com- 
mon carriers.  The  "  Essay  on  the 
Law  of  Bailments,"  by  Sir  Wm.  Jones, 
the  second  edition  of  which  was  pub- 
lished in  1797,  adopted  substantially 
tlie  classification  of  Lord  Holt,  which 
is  still  followed  in  treatises  and  cases 
upon   the   subject. 

Lord  Holt  distributed  all  bailments 
into  six  classes,  viz.: 

1.  Depositum  or  a  naked  bailment 
of  goods  to  be  kept  for  the  use  of  the 
bailor  without  recompense. 

2.  Commodatum,  where  goods  or 
chattels  that  are  useful  are  lent  to 
the  bailee  gratis  to  be  used  by  him. 

3.  Locatio  ret,  where  goods  are  de- 


livered to  the  bailee   to  be   used   by 
him  for  hire. 

4.  Vadium,  which  is  a  pawn  i>r 
pledge, 

5.  Locatio  operis  faciendi,  where 
goods  are  delivered  to  be  carried  or 
something  is  to  be  done  about  them 
for  a  reward  to  be  paid  to  the  bailee. 

6.  Mandattim,  a  delivery  of  goods 
to  somebody,  who  is  to  carry  them" 
or  do  something  about  them  gratis. 

Bailments  are  again  divided  into 
these,  (1)  for  the  exclusive  benefit  of 
the  bailor;  (2)  for  the  exclusive  b:ne- 
fit  of  the  bailee,  and  (3)  those  for  the 
benefit  of  both  parties. 

In  the  first  class  of  cases  the  bailee 
is  held  only  to  sliglit  care  and  is 
liable  only  for  gross  negligence.  De- 
posits and  mandates  are  of  this  sort. 

In  the  second  class,  as  in  commo- 
datum, the  bailee  is  held  to  exercise 
great  care  and  is  liable  for  slight 
negligence. 

In  tiie  third  class  the  bailee  is  heM 
to  exercise  ordinary  care  and  is  liable 
for  ordinary  negligence. 

On  grounds  of  public  policy,  inn- 
keepers and  common  carriers,  are,  at 
common  law,  held  to  be  insurers 
against  everything  except  the  act  of 
the  bailor,  the  act  of  God  or  the  public 
enemy.  In  some  states  the  innkeeper 
is  not  regarded  as  an  insurer,  but  the 
loss  of  the  goods  makes  him  prima 
facie  liable;  but  he  may  show  him- 
self not  guilty  of  negligence.  See 
local  statutes.  The  extent  to  which 
common  carriers  may  limit  their  lia- 


Chap.  XXX.]  Oi"  Title  by  Contract,  "''%      '  379 

or  (in  our  legal  dialect)  bailed  to  a  tailor  to  make  a  suit  of 
clothes,  he  has  it  upon  an  implied  contract  to  render  it 
again  when  made,  and  that  in  a  workmanly  manner.  If 
money  or  goods  be  delivered  to  a  common  carrier  to  convey 
from  Oxford  to  London,  he  is  under  a  contract  in  law  to 
pay  or  carry  them  to  the  person  appointed.  If  a  horse  or 
other  goods  be  delivered  to  an  inkeeper  or  his  servants,  he 
is  bound  to  keep  them  safely,  and  restore  them  when  his 
guest  leaves  the  house.  [452]  If  a  man  takes  in  a  horse 
or  other  cattle  to  graze  and  depasture  in  his  grounds,  which 
the  law  calls  agistment,  he  takes  them  upon  an  implied  con- 
tract to  return  them' on  demand  to  the  owner.  If  a  pawn- 
broker receives  plate  or  jewels  as  a  pledge  or  security  for 
the  repayment  of  money  lent  thereon  at  a  day  certain,  he 
has  them  upon  an  express  contract  or  condition  to  restore 
them,  if  the  pledgor  performs  his 'part  by  redeeming  them 
in  due  time.  And  so  if  a  landlord  distreins  goods  for  rent, 
or  a  parish  officer  for  taxes,  these  for  a  time  are  only  a 
pledge  in  the  hands  of  the  distreinors,  and  they  are  bound 
by.  an  implied  contract  in  law  to  restore  them  on  payment 
of  the  debt,  duty,  and  expenses,  before  the  time  of  sale,  or, 
when  sold,  to  render  back  the  overplus.  If  a  friend  de- 
livers anything  to  his  friend  to  keep  for  him,  the  receiver 
is  bound  to  restore  it  on  demand.  And  now  the  law  seems 
to  be  settled  that  such  a  general  bailment  will  not  charge 
the  bailee  with  any  loss,  unless  it  happens  by  gross  neglect, 
which  is  an  evidence  of  fraud;  but  if  he  undertakes  specially 
to  keep  the  goods  safely  and  securely,  he  is  bound  to  take 
the  same  care  of  them  as  a  prudent  man  would  take  of  his 
own. 

In  all  these  instances  there  is  a  special  qualified  property 
transferred  from  the  bailor  to  the  bailee,  together  with  the 
possession.     It  is  not  an  absolute  property,  because  of  liis 

bility  by  notice  and  by  contract  has  not    insurers    of   the    safety    of    tiieir 

been  productive  of  mucli  litigation  and  passengers,  but  are  held  to  the  utmost 

the  literature  is  too  voluminous  to  ba  degree   of   care  and   diligence,   so   far 

summarized.      See,    generally,    Moore  as  human  skill  and  foresight  can  go. 

on  Carriers,  and  Bender's  Law   Book  Moore   on   Carriers,   594   et   seq.   and 

Catalogue,   12,  13.  casts  cited. 
Common  carriers  of  passengers  are 


380  Of  Title  by  Contract.  [Book  II. 

contract  for  restitution,  the  bailor  having  still  left  in  him 
the  right  to  a  chose  in  action  grounded  upon  such  contract. 
[453]  And  on  account  of  this  qualified  property  of  the 
bailee  he  may  (as  well  as  the  bailor)  maintain  an  action 
against  such  as  injure  or  take  away  these  chattels.  The 
tailor,  the  carrier,  the  innkeeper,  the  agisting  farmer,  tho 
pawnbroker,  the  distreinor,  and  the  general  bailee  may  all 
of  them  vindicate,  in  their  own  right,  this  their  possessory 
interest  against  any  stranger  or  third  person. 

3,  Hiring  and  borrowing  are  also  contracts  by  which  a 
qualified  property  may  be  transferred  to  the  hirer  or  bor- 
rower, in  which  there  is  only  this  difference,  that  hiring 
is  always  for  a  price  or  stipend  or  additional  recompense, 
borrowing  is  merely  gratuitous.  But  the  law  in  both  cases 
is  the  same.^  They  are  both  contracts  whereby  the  posses- 
sion and  a  transient  property  is  transferred  for  a  particular 
time  or  use  on  condition  to  restore  the  goods  so  hired  or 
borrowed  as  soon  as  the  time  is  expired  or  use  performed, 
together  with  the  price  or  stipend  (in  case  of  hiring)  either 
expressly  agreed  on  by  the  parties  or  left  to  be  implied 
by  law  according  to  the  value  of  the  service.  By  this 
mutual  contract  the  hirer  or  borrower  gains  a  temporary 
property  in  the  thing  hired,  accompanied  with  an  implied 
condition  to  use  it  with  moderation  and  not  to  abuse  it, 
and  the  owner  or  lender  retains  a  reversionary  interest  in 
the  same,  and  acquires  a  new  property  in  the  price  or 
reward. 

There  is  one  species  of  this  price  or  reward,  the  most 
usual  of  any,  when  money  is  lent  on  a  contract  to  receive 
not  only  the  principal  sum  again,  but  also  an  increase  by 
way  of  compensation  for  the  use,  which  generally  is  called 
interest  by  those  who  think  it  lawful,  and  usury  by  those 
who  do  not  so.*  [454]     If  a  contract  which  carries  interest 

3.  Their  liability  for  negligence  is  in  the  several  states.  See  Tyler  on 
different.     See  supra,  note.  Usury,   Pawns   and    Pledges    (1873); 

4.  Usury  is  interest  in  excess  of  Webb  on  Usury  (1899).  As  to  the 
that  allowed  by  law.  The  rates  of  law  of  usury  in  general,  sec,  also, 
conventional  and  nonconventional  in-  3  Chitty's  Com.  L.  87  to  91,  310  to 
terest  and  the  penalties  for  taking  316;  R.  B.  Comyn  on  Usury;  Ord. 
usury  are  fixed  by  statutes  and  vary  on    Usury,    and    Plowden    on    Usury. 


Chap.  XXX.] 


Of  Title  by  Contract. 


381 


be  made  in  a  foreign  country,  our  courts  will  direct  the 
payment  of  interest  according  to  the  law  of  that  country 
in  which  the  contract  was  made.  Thus  Irish,  American, 
Turkish,  and  Indian  interest  have  been  allowed  in  our 
courts  to  the  .amount  of  even  twelve  per  cent.;  for  the 
moderation  or  exorbitance  of  interest  depends  upon  local 
circumstances,  and  the  refusal  to  enforce  such  contracts 
would  put  a  stop  to  all  foreign  trade.  [464] 

Sometimes  the  hazard  may  be  greater  than  the  rate  of 
interest  allowed  by  law  will  compensate.  [457]     And  this 


There  must  be  an  unlawful  intent, 
and  therefore  if  the  usury  arise  from 
error  in  computation,  it  will  not  viti- 
ate.    Cro.  Car.  501;  2  Bla.  Rep.  792; 

1  Camp.  149.  Exorbitant  discount  to 
induce  the  acceptor  to  take  up  a  bill 
before  it  is  due  is  not  usurious,  be- 
cause there  must  be  a  loan  or  for- 
bearance of  payment,  or  some  devise 
for  the  purpose  of  concealing,  or  evad- 
ing the  appearance  of  a  loan  or  for- 
bearance. 4  East,  55;  5  *Esp.  11; 
Peake,  200;  1  B.  &  P.  144;  4  Taunt. 
810.  Nor  if  the  charge  alleged  to  be 
usurious  is  fairly  referable  to  the 
trouble,  expense,  etc.,  in  the  transac- 
tion.    3  B.  &  P.  154;  4  M.  &  S.  192; 

2  T.  R.  238;  1  Mad.  Rep.  112;  1 
Camp.  177;  15  Ves.  120.  Bankers 
may  charge  their  usual  commissien 
beyond  legal  interest.  2  T.  R.  52. 
Under  the  direction  of  the  court,  it 
is  the  province  of  the  jury  to  deter- 
mine when  there  is  usury  in  a  trans- 
action. 4  M.  &  S.  192;  1  Dowl.  & 
R.  570;  3  B.  &  A.  664;  2  Bla.  Rep. 
864.  The  purchase  of  an  annuity  at 
ever  so  cheap  a  rate,  will  not  prima 
facie  be  usurious,  but  if  it  be  for 
years,  TTr  an  express  agreement  to  re- 
purchase and  on'  calculation  more 
than  the  principal  with  legal  interest 
is  to  be  returned,  it  will.  3  B.  &  P. 
151;   3  if.  &•  A.  566.     And  if  part  of 


the  advance  be  in  goods,  it  must  be 
shown  that  they  were  not  overcharged 
in  price.  Doug.  735;  1  Esp.  40;  2 
Camp.  375;  Holt,  N.  P.  C.  256.  A 
loan  made  returnable  on  a  certain 
day,  on  payment  of  a  sum  beyond 
legal  interest,  on  default  thereof  may 
be  a  penalty  and  not  usurious  inter- 
est, the  intention  of  the  parties  being 
the  criterion  in  all  cases.  If  money 
be  lent  on  risk  at  more  than  legal  in- 
terest, and  the  casualty  aflfects  the 
interest  only,  it  is  usury,  not  so,  if  it 
affects  the  principal  also.  Cro.  J. 
508;  3  Wils.  395.  The  usury  must  be 
part  of  the  contract  in  its  inception, 
and  being  void  in  its  commencement, 
it  is  so  in  all  its  stages,  Doug.  735; 

1  Stark.  385;  though  bills  of  exchang3 
so  tainted,  are  by  the  58  Geo.  Ill , 
c.  93,  rendered  valid  in  the  hands  of 
a  bona  fide  holder,  unless  he  has  act- 
ual notice  of  the  usury,  but  if  the 
drawer  of  a  bill  transfer  it  for  a  valu- 
able consideration,  he  cannot  set  up 
antecedent  usury  with  the  acceptor  as 
a  defence.  4  Bar.  &  Aid.  215.  A 
security  with  legal  interest  only,  sub- 
stituted for  one  that  is  usurious,  is 
valid.     1  Camp.  165  n.;  2  Taunt.  184; 

2  Stark.  237  Taking  usurious  inter- 
est on  a  bona  "fide  debt,  does  not  de- 
stroy the  debt.  1  H.  B.  462;  1  T. 
R    153;   2  Ves.  567;   1  Saund.  295. 


382 


Of  Title  by  Contract. 


[Book  II. 


gives  rise  to  the  practice  of,  1.  Bottomry,  or  respondentia; 
2.  Policies  of  insurance;   3.  Annuities  upon  lives. 

And  first,  bottomry^  is  in  the  nature  of  a  mortgage  of  a 
ship,  when  the  owner  takes  up  anoney  to  enable  him  to  carry 
on  his  voyage,  and  pledges  the  keel  or  bottom  of  the  ship 
{partem  pro  toto)  as  a  security  for  the  repayment.  In 
which  case  it  is  understood  that  if  the  ship  be  lost  the  lender 
loses  also  his  whole  money,  but  if  it  returns  in  safety,  then 
he  shall  receive  back  his  principal,  and  also  the  premium 
or  interest  agreed  upon,  however  it  may  exceed  the  legal 
rate  of  interest.  And  this  is  allowed  to  be  a  valid  contract 
in  all  trading  nations  for  the  benefit  of  commerce,  and  by 


5.  See  in  general,  Abbott  on  Ship- 
ping, 143;  2  Holt,  398;  3  Cliitty's 
Uom.  L.  313  to  316.  The  general  na- 
ture of  o  respondentia  bond  is  this, 
the  borrower  binds  himself  in  a  large 
penal  sum,  upon  condition  that  the 
obligation  shall  be  void,  if  he  pay  the 
lender  the  sum  borrowed  and  so  much 
a  month  from  the  date  of  the  bond 
till  the  ship  arrives  at  a  certain  port, 
or  if  the  ship  be  lost  or  captured  in 
the  course  of  the  voyage.  The  re- 
epondentia  interest  is  frequently  at 
the  rate  of  forty  or  fifty  per  cent,  or 
in  proportion  to  the  risk  and  profit 
of  the  voyage.  The  respondentia 
lender  may  insure  his  interest  in  the 
success  of  the  voyage,  but  it  must 
be  expressly  specified  in  the  policy  to 
be  respondentia  interest  (3  Burr. 
1391);  unless  there  is  a  particular 
usage  to  the  contrary.  Park.  Ins.  11. 
A  lender  upon  respondentia  is  not 
obliged  to  pay  salvage  or  average 
losses,  but  he  is  entitled  to  receive 
the  whole  sum  advanced,  provided  the 
ship  and  cargo  arrive  at  the  port  of 
destination:  nor  will  he  lose  the  Dene- 
fit  of  the  bond,  if  an  accident  happens 
by  the  default  of  the  borrower  or  the 
captain  of  the  ship.  lb.,  421.  Nor 
will  a  temporary  capture,  or  any  dam- 


age short  of  the  destruction  of  the 
ship,  defeat  his  claim.  2  Park.  626, 
7;  1  M.  &  S.  30. 

Where  bottomry  bonds  are  sealed, 
and  the  money  paid,  the  person  bor- 
rowing runs  the  hazard  of  all  injuries 
by  storm,  fire,  etc.,  before  the  begin- 
ning of  the  voyage,  unless  it  be  other- 
wise pro^^ided.  As,  that,  if  the  ship 
shall  not  arrive  at  such  a  place  at 
such  a  time,  etc.,  then  the  contract 
hath  a  beginning  from  the  time  of 
sealing;  but  if  the  condition  be,  that 
if  such  ship  shall  sail  from  London 
to  any  port  abroad,  and  shall  not 
arrive  there,  etc.,  then,  etc.,  the  con- 
tingency hath  not  its  beginning  till 
the  departure.  Beawes  Lex.  Merc. 
143;  Park.  626.  A  lender  on  bot- 
tomry or  respondentia  is  not  liable  to 
contribute  in  the  case  of  general  av- 
erage, nor  is  he  entitled  to  the  benefit 
of  salvage.  Park.  627,  629:  4  M.  & 
Selw.  141.  See,  however.  Marshal  on 
Insurance,  6  Ch.  book  2.  In  the  case 
of  hypothecation,  the  lender  may  re- 
cover the  ship  itself  in  the  admiralty 
court,  but  not  in  bottomry  or  respon- 
dentia.    See  6  Moore,  397. 

See  in  general,  Park  &  Marshal  on 
Insurances,  and  3  Chitty.Com.  L.  445 
to  536. 


Chap.  XXX.]  Of  Title  by  Contract.  383 

reason  of  the  extraordinary  liazard  run  by  the  lender.  [458] 
And  in  this  case  the  ship  and  tackle,  if  brought  home,  are 
answerable  (as  well  as  the  person  of  the  borrower)  for  the 
money  lent.  But  if  the  loan  is  not  upon  the  vessel,  but  upon 
the  goods  and  merchandise,  which  must  necessarily  be  sold 
or  exchanged  in  the  course  of  the  voyage,  then  only  the  bor- 
rower personally  is  bound  to  answer  the  contract;  who 
therefore  in  this  case  is  said  to  take  up  money  at  respon- 
dentia. 

Secondly,  a  policy  of  insurance  is  a.  contract  between  A 
and  B,  that  upon  A's  paying  a  premium  equivalent  to  the 
hazard  run,  B  will  indemnify  or  insure  him  against  a  par- 
ticular event.  Insurances  being  contracts,  the  very  es- 
sence of  which  consists  in  observing  the  purest  good  faith 
and  integrity,  they  are  vacated  by  any  the  least  shadow 
of  fraud  or  undue  concealment.^   [460] 

4.  By  a  debt,  a  chose  in  action,  or  right  to  a  certain  sum 
of  money,  is  mutually  acquired  and  lost.  This  may  be 
the  counterpart  of,  and  arise  from  any  of  the  other  species 
of  contracts.  As  in  case  of  a  sale,  where  the  price  is  not 
paid  in  ready  money,  the  vendee  becomes  indebted  to  the 
vendor  for  the  sum  agreed  on,  and  the  vendor  has  a  prop- 
erty in  this  price,  as  a  chose  in  action,  by  means  of  this 
contract  of  debt.  Any  contract,  in  short,  whereby  a  de- 
terminate sum  of  money  becomes  due  to  any  person  and  is 
not  paid,  but  remains  in  action  merely,  is  a  contract  of 
debt.  And  taken  in  this  light,  it  comprehends  a  great 
variety  of  acquisition,  being  usually  divided  into  debts  of 
record,  debts  by  special,  and  debts  by  simple  contract.  [465] 

A  debt  of  record  is  a  sum  of  money  which  appears  to  be 
due  by  the  evidence  of  a  court  of  record.^  Thus,  when  any 
specific  sum  is  adjudged  to  be  due  from  the  defendant  to 

6.  It  may  also  be  laid  down  as  a  insurance,  Arnold  on  Marine  Insur- 
general  rule  applicable  to  all  sorts  of  ance,  2  vols.  (1901)  ;  May  on  Insiir- 
insurance,  that  the  party  insured  ance,  2  vols.  (1900);  Vance  on  In- 
nuist  have  an  interest  in  the  subject-  eurance  (1904);  Pingrey  on  Surety- 
matter  of  the  insurance,  and  that  if  ship  and  Guaranty  (2d  Ed.,  1913). 
he  has  not  the  policy  is  what  is  called  7.  At  common  law  an  action  of  debt 
a  wagering  policy,  and  void.  See,  lies  upon  a  judgment  for  money, 
generally,  as  to  fire,  life  and  marine 


384  Of  Titije  by  Contract.  [Book  TI. 

the  plaintiff  on  an  action  or  suit  at  law,  this  is  a  contract 
of  the  highest  nature,  being  established  by  the  sentence  of 
a  court  of  judicature.  Debts  upon  recognizance^  are  also 
a  sum  of  money,  recognized  or  acknowledged  to  be  due  to 
the  crown  or  a  subject,  in  the  presence  of  some  court  or 
magistrate,  with  a  condition  that  such  acknowledgment 
shall  be  void  upon  the  appearance  of  the  party,  his  good 
behavior,  or  the  like;  and  these,  together  with  statutes 
merchant  and  statutes  staple,  &c.,  if  forfeited  by  non-per- 
formance of  the  condition,  are  also  ranked  among  this  first 
and  principal  class  of  debts,  viz.,  debts  of  record. 

Debts  by  specialty,*  or  special  contract,  are  such  whereby 
a  sum  of  money  becomes,  or  is  acknowledged  to  be  due  by 
deed  or  instrument  under  seal.  Such  as  by  deed  of  cov- 
enant, by  deed  of  sale,  by  lease  reserving  rent,  or  by  bond 
or  obligation. 

Debts  by  simple  contract^  are  such  where  the  contract 
upon  which  the  obligation  arises  is  neither  ascertained  by 
matter  of  record  nor  yet  by  deed  or  special  instrument,  but 
by  mere  oral  evidence,  the  most  simple  of  any,  or  by  notes 
unsealed,  which  are  capable  of  a  more  easy  proof,  and 
(therefore  only)  better  than  a  verbal  promise.  [466]  It  is 
easy  to  see  into  what  a  vast  variety  of  obligations  tliis  last 
class  may  be  branched  out,  through  the  numerous  con- 
tracts for  money,  which  are  not  only  expressed  by  the  par- 
ties, but  virtually  implied  in  law.  I  shall  only  observe  at 
present  that,  by  the  statute  29  Car.  I.I.  c.  3,  no  executor  or 
administrator  shall  be  charged  upon  any  special  promise  to 
answer  damages  out  of  his  own  estate,  and  no  person  shall 
be  charged  upon  any  promise  to  answer  for  the  debt  or 
default  of  another,  or  upon  any  agreement  in  consideration 
of  marriage,  or  upon  any  contract  or  sale  of  any  real  estate, 
or  upon  any  agreement  that  is  not  to  be  performed  within 
one  year  from  the  making,  unless  the  agreement  of  some 
memorandum  thereof  be  in  a  writing,  and  signed  by  tha 
party  himself  or  by  his  authority.'-^ 

8.  Enforced  at  common  law  by  writ  1.  Enforcible  by  action  of  debt  or 
of  scire  facias.                                                assumpsit, 

9.  Enforcible  by  action  of  debt.  2.  This   section    of   the    Statute   of 


Chap.  XXX.]  Of  Title  by  Contract.  385 

But  there  is  one  species  of  debts  upon  simple  contract 
which  deserves  a  more  particular  regard.  These  are  debts 
by  bills  of  exchange  and  promissory  notes. 

A  bill  of  exchange  is  an  open  letter  of  request  from  one 
man  to  another,  desiring  him  to  pay  a  sum  named  therein 
to  a  third  person  on  his  account;^  by  which  means  a  man 
at  the  most  distant  part  of  the  world  may  have  money  re- 
mitted to  him  from  any  trading  country.  In  common  speech 
such  a  bill  is  frequently  called  a  draft,  but  a  hill  of  ex- 
change is  the  more  legal  as  well  as  mercantile  expression. 
The  person,  however,  who  writes  this  letter  is  called  in  law 
the  drawer,  and  he  to  whom  it  is  written  the  drawee  [after 
he  has  accepted  it  he  is  called  the  acceptor] ;  and  the  third 
person,  or  negotiator,  to  whom  it  is  payable  (whether  es- 
pecially named,  or  the  hearer  generally)  is  called  the  payee. 

These  bills  are  either  foreign  or  inland:  foreign,  when 
drawn  by  a  merchant  residing  abroad  upon  his  correspond- 
ent in  England,  or  vice  versa;  and  inland,  when  both  the 
drawer  and  the  drawee  reside  within  the  kingdom.  For- 
merly foreign  bills  of  exchange  were  much  more  regarded 
in  the  eye  of  the  law  than  inland  ones,  as  being  thought  of 
more  public  concern  in  the  advancement  of  trade  and  com- 
merce. But  now  by  two  statutes,  the  one  9  &  10  W.  III. 
c.  17,  the  other  3  &  4  Anne,  c.  9,  inland  bills  of  exchange 
are  put  upon  the  same  footing  as  foreign  ones;  what  was 

Frauds  has  been  re-enacted  in  sub-  called  "Negotiable  Instruments  Law" 
stance  in  most,  if  not  all,  the  states.  has  been  enacted.  With  slight  changes 
Tt  has  occasioned  so  much  litigation  it  has  become  the  law  in  47  states, 
that  every  word  of  it  is  said  to  have  territories  and  possessions  of  .  the 
•cost  a  subsidy.  See.  generally,  Browne  United  States.  In  16  of  these  the  see- 
on  Statute  of  Frauds,  5th  Ed.,  tion  numbering  is  the  same.  Thia 
(1895);  Clark  on  Contracts  (3d  Ed.),  statute  is  mainly  declaratory  of  the 
78-132;  Tiflfany  on  Sales  (2d  Ed.),  common  law.  For  a  list  of  the  states 
chap.  2.  in  which   it  is  effective,  tables  show- 

3.  Eaton    &    Gilbert     Com.    Paper  ing  the  numbering  of  the  sections  la 

(1903),   4.  different  states  and  the  statute  itself. 

In    1882    Great    Britain   enacted    a  see  Norton  on  Bills  and  Notes    (4th 

^' Bills  of   Exchange   Act"    (45   &  46  Ed.,    1914),   pages   601   to   656.     The 

Viet.,  e.  61)  ;  and  in  many  of  the  states  statute  is  too  voluminous  to  be  hera 

of  this  country  more  recently  the  so-  reproduced. 

25 


386  Of  Title  by  Contract.  [Book  II. 

the  law  and  custom  of  merchants^  with  regard  to  the  one, 
and  taken  notice  of  merely  as  such,  being  by  tliose  statutes 
expressly  enacted  with  regard  to  the  other.  So  that  now" 
there  is  not  in  law  any  manner  of  difference  between  them 
[except  that  in  the  case  of  foreign  bills  protest  is  neces- 
sary].^ 

Promissory  notes,  or  notes  of  hand,  are  a  plain  and  di- 
rect engagement  in  writing  to  pay  a  sum  specified  at  the 
time  therein  limited  to  a  person  therein  named,  or  some- 
times to  his  order,  or  often  to  the  bearer  at  large.^  These 
also,  by  the  same  statute,  3  &  4  Anne,  c.  9,  are  made  assign- 
able and  indorsable  in  like  manner  as  bills  of  exchange. 

[468]  The  payee,  either  of  a  bill  of  exchange  or  promis- 
sory note,  has  clearly  a  property  vested  in  him  (not  indeed 
in  possession  but  in  action)  by  the  express  contract  of  the 
drawer  in  the  case  of  a  promissory  note,  and,  in  the  case  of  a 
bill  of  exchange,  by  his  implied  contract,  viz.,  that,  provided 
the  drawee  does  not  pay  the  bill,  the  drawer  will :  for  which 
reason  it  is  usual  in  bills  of  exchange  to  express  that  the 
value  thereof  hath  been  received  by  the  drawer;  in  order 
to  shew  the  consideration,  upon  which  the  implied  contract 
of  repayment  arises.  And  this  property  may  be  transferred 
and  assigned  from  the  payee  to  any  other  man;  contrary  to 
the  general  rule  of  common  law,  that  no  chose  in  action  is 
assignable:  which  assignment  is  the  life  of  paper  credit. 

In  the  first  place,  then,  the  payee,  or  person  to  whom  or 
whose  order  such  bill  of  exchange  or  promissory  note  is 
payable,  may  by  indorsement,  or  writing  his  name  in  dorso, 
or  on  the  back  of  it,  assign  over  his  whole  property  to  the 
bearer,  or  else  to  another  person  by  name,  either  of  whom 
is  then  called  the  indorsee;  and  he  may  assign  the  same  to 

4.  These  customs  are  now  and  long  6.  Eaton  &  Gilbert,  Com.  Paper,  17. 

have  been  a  part  of  the  g.-neral  law  As  to  other  forms  of  commercial  pa- 

of  the  land,  i.  e.,  are  a  part  of  the  per,  viz.,  due  bills  and  I.  O.  U.'s,  cer- 

common   law.     2   Bouvier   Law    Diet,  tificatfs    of    deposit,    checks,    bills    of 

Law  Merchant,  and  authorities  cited;  lading,    letters    of    credit,    bonds    and 

Eaton  &  Gilbert  on   Commercial   Pa-  coupons  and  certificates  of  stock,  see 

per,  3  and  cases  cited.  Eaton   &  Gilbert    (supra),  23-38  and 

5    See    Buckner    v.    Finley,    2    Pet.  notes.     See  vol.  2  of  this  series. 
(U.   S.)    586. 


CiiAr.  XXX.]  Or  Title  by  Contract.       '^  ^-    '  387 

another,  and  so  on  in  infinitum.'^  And  a  promissory  note, 
payable  to  A  or  hearer,  is  negotiable  without  any  indorse- 
ment, and  payment  thereof  may  be  demanded  by  any 
bearer  of  it.  But  in  case  of  a  bill  of  exchange,  the  payee,  or 
the  indorsee  (whether  it  be  a  general  or  particular  indorse- 
ment), is  to  go  to  the  drawee  and  offer  his  bill  for  accept- 
ance; which  acceptance  (so  as  to  charge  the  drawer  with 
costs)  must  be  in  writing,  under  or  on  the  back  of  the  bill.^ 
[469]  If  the  drawee  accepts  the  bill,  either  verbally  or  in 
writing,  he  then  makes  himself  liable  to  pay  it;  this  being 
now  a  contract  on  his  side,  grounded  on  an  acknowledgment 
that  the  drawer  has  effects  in  his  hands,  or  at  least  credit 
sufficient  to  warrant  the  payment.  If  the  drawee  refuses 
to  accept  the  bill,  and  it  be  of  the  value  of  20/.  or  upwards, 
and  expressed  to  be  for  value  received,  the  payee  or  in- 
dorsee may  protest  it  for  non-acceptance,  which  protest 
must  be  made  in  writing,  under  a  copy  of  such  bill  of  ex- 
change, by  some  notary  public;  or,  if  no  such  notary  be 
resident  in  the  place,  then  by  any  other  substantial  inhab- 
itant in  the  presence  of  two  credible  witnesses,  and  notice 
of  such  protest  must,  within  fourteen  days  after,  be  given 
to  the  drawee.^ 

But  in  case  such  bill  be  accepted  by  the  drawee,  and  after 
acceptance  he  fails  or  refuses  to  pay  it  within  three  days 
after  it  becomes  due  (which  three  days  are  called  days  of 
grace), ^  the  payee  or  indorsee  is  then  to  get  it  protested 
for  non-payment  2  in  the  same  manner  and  by  the  same 
person  who  are  to  protest  it  in  case  of  non-acceptance,  and 

7.  See  Eaton  &  Gilbert,  Com.  Pa-  when  the  bill  is  payable  a  certain 
per.  317,  352  and  cases  cited.  time    after   sight.     Notice   must  now 

8.  Except  as  changed  by  statute  be  given  to  the  immediate  indorser, 
the  acceptance  of  a  bill  of  exchange  within  a  reasonable  time,  usually  the 
may  be  verbal  as  well  as  written.  next  day.  Eaton  &  Gilbert,  Com.  Pa- 
Eaton  &  Gilbert  Com.  Paper,  594  and  per,  502-507.  See  local  statutes, 
casrs  collected  in  the  notes.  The  usual  1.  See  Eaton  &  Gilbert,  Com.  Pa- 
form  of  acceptance  is  by  writing  upon  per,  476.  Days  of  grace  are  abol- 
the  face  of  the  bill  the  word  "  ac-  ished  by  statute  in  some  of  the  states, 
cepted "  with  the  signature  of  the  2.  See,  generalh',  Eaton  &  Gilbert, 
drawee  subscribed.  Eaton  &  Gilbert,  Com.  Paper,  611.  Regulated  by  stat- 
Com.  Paper,  595.  ute  in  some  states.     Id. 

9.  Acceptance  is  now  only  necessary 


388  Of  Title  by  Contract.  [Book  II. 

such  protest  must  also  be  notified,  within  fourteen  days 
after,  to  the  drawer.  And  he,  on  producing  such  protest, 
either  of  non-acceptance  or  non-payment,  is  bound  to  make 
good  to  the  payee  or  indorsee,  not  only  the  amount  of  the 
said  bills  (which  he  is  bound  to  do  within  a  reasonable  time 
after  non-payment,  without  any  protest,  by  the  rules  of 
the  common  law),  but  also  interest  and  all  charges,  to  be 
computed  from  the  time  of  making  such  protest.  But  if 
no  protest  be  made  or  notified  to.  the  drawer,  and  any 
damage  accrues  by  such  neglect,  it  shall  fall  on  the  holder 
of  the  bill.  The  bill  when  refused  must  be  demanded  of  the 
drawer  as  soon  as  conveniently  may  be;  for  though,  when 
one  draws  a  bill  of  exchange,  he  subjects  himself  to  the  pay- 
ment, if  the  person  on  whom  it  is  drawn  refuses  either  to 
accept  or  pay,  yet  that  is  wdth  this  limitation,  that  if  the 
bill  be  not  paid  when  due,  the  person  to  whom  it  is  payable 
shall  in  convenient  time  give  the  drawer  notice  thereof,  for 
otherwise  the  law  will  imply  it  paid.  Since  it  would  be 
prejudicial  to  commerce  if  a  bill  might  rise  up  to  charge 
the  drawer  at  any  distance  of  time,  when  in  the  mean  time 
all  reckonings  and  accounts  may  be  adjusted  between  the 
drawer  and  the  drawee.   [470] 

If  the  bill  be  an  indorsed  bill,  and  the  indorsee  cannot  get 
the  drawee  to  discharge  it,  he  may  call  upon  either  the 
drawer  or  the  indorser,  or  if  the  bill  has  been  negotiated 
through  many  hands,  upon  any  of  the  indorsers;  for  each 
indorser  is  a  warrantor  for  the  payment  of  the  bill,^  which 
is  frequently  taken  in  payment  as  much  (or  more)  upon 

3.  The  Negotiable  Instruments  Law  time    of    hia    indorsement    valid    and 

of  New  York,  §  115,  which  is  declara-  subsisting  and  in  addition  he  engages 

tory    of    the   common     law,     provides  that  on  due   presentment   it  shall  be 

that    "  Every    indorser    who    indorses  accepted  or  paid,  or  both,  as  the  case 

without  qualification,  warrants  to  all  may  be,  according  to  its  terms;   and 

subsequent   holders   in   due  course:  that    if    dishonored    and    the    necea- 

"  1.  That  the  instrument  is  genu-  sary  proceedings  on  dishonor  be  duly 
ine  and  in  all  respects  what  it  pur-  taken,  he  will  pay  tlie  amount  there- 
ports  to  be;  of  to  the  holder  or  to  any  subsequent 

"2.  That  he  has  a  good  title  to  it;  indorser    who    may    be.   compelled    to 

.,     "  3.  That  all  prior  parties  had  ca-  pay  it."     Eaton  &  Gilbert,  Com.  Pa- 

pacity   to  contract;  per,  418,  424  and  cases  cited. 

"  4.  Tha,t  the  instrument  is  at  tb« 


Chap.  XXX.]  Of  Title  by  Contract.  ^  389 

the  credit  of  the  indorser  as  of  the  drawer.  And  if  such 
indorser,  so  called  upon,  has  the  names  of  one  or  more  in- 
dorsers  prior  to  his  own,  to  each  of  whom  he  is  properly 
an  indorsee,  he  is  also  at  liberty  to  call  upon  any  of  them 
to  make  him  satisfaction,  and  so  upwards.  But  the  first 
indorser  has  nobody  to  restort  to  but  the  drawer  only. 

What  has  been  said  of  bills  of  exchange  is  applicable 
also  to  promissory  notes  that  are  indorsed  over  and  nego- 
tiated from  one  hand  to  another,  only  that  in  this  case,  as 
there  is  no  drawee,  there  can  be  no  protest  for  non-accept- 
ance; or  rather,  the  law  considers  a  promissory  note  in  the 
light  of  a  bill  drawm  by  a  man  upon  himself  and  accepted 
at  the  time  of  drawing.  And  in  case  of  non-payment  by 
the  drawer,  the  several  indorsees  of  a  promissory  note  have 
the  same  remedy  as  upon  bills  of  exchange  against  the  prior 
indorsers. 


390  Of  Title  by  Bankruptcy.  [Book  IL 

CHAPTER  XXXI. 

OF  TITLE   BY  BANKRUPTCY.* 

X.  Bankruptcy;  a  title  which  we  before  lightly  touched 
upon.-  At  present  we  are  to  treat  of  it  more  minutely,  as 
it  principally  relates  to  the  disposition  of  chattels,  in  which 
the  property  of  persons  concerned  in  trade  more  usually 
consists,  than  in  lands  or  tenements.  Let  us,  therefore, 
first  of  all  consider,  1.  Who  may  become  a  bankrupt:  2. 
What  acts  make  a  bankrupt:  3.  The  proceedings  on  a  com- 
mission of  bankrupt:  and,  4.  In  what  manner  an  estate  in 
goods  and  chattels  may  be  transferred  by  bankruptcy. 

1.  Who  may  become  a  bankrupt.^^  A  bankrupt  was  be- 
fore' defined  to  be  "  a  trader,  who  secretes  himself,"  or 
**  does  certain  other  acts,  tending  to  defraud  his  creditors." 
He  was  formerly  considered  merely  in  the  light  of  a  crimi- 
nal or  offender.  [472]  But  at  present  the  laws  of  bank- 
ruptcy are  considered  as  laws  calculated  for  the  benefit  of 
trade,  and  founded  on  the  principles  of  humanity  as  well 
as  justice;  and  to  that  end  they  confer  some  privileges,  not 
only  on  the  creditors,  but  also  on  the  bankrupt  or  debtor 
himself.  On  the  creditors,  hy  compelling  the  bankrupt  to 
give  up  all  Ms  effects  to  their  use,  without  any  fraudulent 
concealment:  on  the  debtor,  by  exempting  him  from  the  rigor 
of  the  general  laic,  whereby  his  person  might  be  confined  at 
the  discretion  of  his  creditor,  though  in  reality  he  has  nothing 
to  satisfy  the  debt:  whereas  the  law  of  bankrupts  taking  into 
consideration  the  sudden  and  unavoidable  accidents  to  which 
men  in  trade  are  liable,  has  given  them  the  liberty  of  tlieir 

1.  The  United  States  Bankruptcy  debts  in  any  amount,  no  matter  how 
Acts  of  1800,  1841,  1867,  1898,  with  §mall,  may  file  a  voluntary  petition 
the  amendments  of  1903.  1906  and  in  bankruptcy.  Collier  on  Bank- 
1910,  will  be  found  printed  in  full  in  ruptcy  (10th  Ed.),  121.  Corporations 
the  10th  Edition  of  Collier  on  Bank-  may  bewme  voluntary  bankrupts.  Td. 
ruptcy    (1914),  1337-1420.  122.     As  to  who  may  be  adjudged  in- 

2.  See  page  •285.  voluntary  .bankrupts,  see  Id.  127.   The 
2a.  Under  the  present  act  of  Con-      debtor  must  owe  at  least  $1,000.     Id. 

gress    (1910),   any    person   who   owes  3.  Ibid. 


Chap.  XXXL]      Of  Title  dy  BA^fKRUPTCY.  391 

persons,  and  some  pecuniary  emoluments,  upon  condition 
they  surrender  up  their  whole  estate  to  be  divided  among 
their  creditors. 

The  first  statute  made  concerning  any  English  hank- 
riipts  was  34  Hen.  VIII.  c.  4,  when  trade  began  first  to  be 
properly  cultivated  in  England:  which  has  been  almost  to- 
tally altered  by  statute  13  Eliz.  c.  7,  whereby  bankruptcy  is 
confined  to  such  persons  only  as  have  used  the  trade  of  mer- 
chandise, in  gross  or  by  retail,  by  way  of  bargaining,  ex- 
change, re-change,  bartering,  chevisance,  or  otherwise;  or 
have  sought  their  living  hy  buying  and  selling.  And  by 
statute  21  Jac.  I.  c.  19,  persons  using  the  trade  or  profession 
of  a  scrivener,  receiving  other  men's  monies  and  estates  into 
their  trust  and  custody,  are  also  made  liable  to  the  statutes 
of  bankruptcy;  and  the  benefits,  as  well  as  the  penal  parts 
of  the  law,  are  [475]  extended  as  well  to  aliens  and  denizens 
as  to  natural-born  subjects;  being  intended  entirely  for  the 
protection  of  trade,  in  which  aliens  are  often  as  deeply  con- 
cerned as  natives.*  By  many  subsequent  statutes,  but  lastly 
by  statute  5  Geo.  II.  c.  30,  hankers,  brokers,  and  factors, 
are  declared  liable  to  the  statutes  of  bankruptcy;  and  this 
upon  the  same  reason  that  scriveners  are  included  by  the 
statute  of  James  I.,  viz.,  for  the  relief  of  their  creditors; 
whom  they  have  otherwise  more  opportunities  of  defrauding 
than  any  other  set  of  dealers;  and  they  are  properly  to  be 
looked  upon  as  traders,  since  they  make  merchandise  of 
money,  in  the  same  manner  as  other  merchants  do  of  goods 
and  other  moveable  chattels.  But  by  the  same  act,  no 
farmer,  grazier,  or  drover,  shall  (as  such)  be  liable  to  be 
deemed  a  bankrupt :  for,  though  they  buy  and  sell  corn,  and 
hay,  and  beasts,  in  the  course  of  husbandry,  yet  trade  is  not 
their  principal,  but  only  a  collateral,  object;  their  chief  con- 
cern being  to  manure  and  till  the  ground,  and  make  the  best 
advantage  of  its  produce.  A  receiver  of  the  king's  taxes  is 
not  capable,  as  such,  of  being  a  bankrupt;  lest  the  king  should 
be  defeated  of  those  extensive  remedies  against  his  debtors, 
which  are  put  into  his  hands  by  the  prerogative.  By  the 
name  statute,  no  person  shall  have  a  commission  of  bankrunt 

<1.  Seo  now  46  &  47  Vict.,  ch.  52. 


392  Of  Title  by  Bankeuptcy.  [Book  II. 

awarded  against  him,  unless  at  -the  petition  of  some  one 
creditor,  to  whom  he  owes  100/. ;  or  of  ttco,  to  whom  he  is  in- 
debted 150/,;  or  of  more,  to  whom  altogether  he  is  indebted 
200/.  For  the  law  does  not  look  upon  persons  whose  debts 
amount  to  less,  to  be  traders  considerable  enough,  either  to 
enjoy  the  benefit  of  the  statutes  themselves,  or  to  entitle  the 
creditors,  for  the  benefit  of  public  commerce,  to  demand  the 
distribution  of  their  effects.'^   [47G] 

One  single  act  of  buying  and  selling  will  not  make  a  man 
a  trader;  but  a  repeated  practice,  and  profit  by  it.  Buying 
and  selling  bank-stock,  or  other  government  securities,  will 
not  make  a  man  a  bankrupt;  they  not  being  goods,  wares, 
or  merchandise,  within  the  intent  of  the  statute,  by  which 
a  profit  may  be  fairly  made.  Neither  will  buying  and  sell- 
ing under  particular  restraints,  or  for  particular  purposes; 
as,  if  a  commissioner  of  the  navy  uses  to  buy  victuals  for 
the  fleet,  and  disposes  of  the  surplus  and  refuse,  he  is  not 
thereby  made  a  trader  within  the  statutes.  [477]  An  in- 
fant,^ though  a  trader,  cannot  be  made  a  bankrupt;  for  an 
infant  can  ow^e  nothing  but  for  necessaries:  and  the  statutes 
of  bankruptcy  create  no  new  debts,  but  only  give  a  speedier 
and  more  et¥ectual  remedy  for  recovering  such  as  were  be- 
fore due:  and  no  person  can  be  made  a  bankrupt  for  debts 
which  he  is  not  liable  at  law  to  pay.  But  a  feme-covert  in 
London,  being  a  sole  trader  according  to  the  custom,  is 
liable  to  a  commission  of  bankrupt." 

2.  By  what  acts  a  man  may  become  a  bankrupt.  A 
bankrupt  is  '*  a  trader,  who  secretes  himself,  or  does  cer- 
tain other  acts,  tending  to  defraud  his  creditors. ' '  In  gen- 
eral whenever  such  a  trader,  as  is  before  described,  hath 
endeavored  to  avoid  his  creditors,  or  evade  their  just  de- 
mands, this  hath  been  declared  by  the  legislature  to  be  an 
act  of  bankruptcy,  upon  which  a  commission  may  be  sued 
out.  For,  in  this  extrajudicial  method  of  proceeding,  Avhich 
is  allowed  merely  for  the  benefit  of  commerce,  the  law  is 

5.  The  debtor  in  the  United  States  7.  They  may  become  bankrupts  ia 
must  owe  at  least  $1,000.  Collier  on  all  the  states  where  they  can  con- 
Bankruptcy.  127.  tract  debts.     Id.,  126. 

6.  Collier  on  Bankruptcy,   124. 


Chap.  XX XL]      Of  Title  by  Bankruptcy.  303 

extreni'-ly  watchful  to  detect  a  man  whose  circumstances 
are  declining,  in  the  first  instance,  or  at  least  as  early  as 
possible;  that  the  creditors  may  receive  as  large  a  propor- 
tion of  their  debts  as  may  be;  and  that  a  man  may  not  go 
on  wantonly  wasting  his  substance',  and  then  claim  the 
benefit  of  the  statutes,  when  he  has  nothing  left  to  dis- 
tribute. 

To  learn  what  the  particular  acts  of  bankruptcy  are, 
which  render  a  man  a  bankrupt,  we  must  consult  the  several 
statutes,  and  the  resolutions  formed  by  the  courts  thereon. 
[478]  Among  these  may  therefore  be  reckoned,  1.  Depart- 
ing from  the  realm,  whereby  a  man  withdraws  himself  from 
the  jurisdiction  and  coercion  of  the  law,  with  intent  to  de- 
'f raud  his  creditors.  2.  Departing  from  his  own  house,  with 
intent  to  secrete  himself,  and  avoid  his  creditors.  3.  Keep- 
ing in  his  own  house,  privately,  so  as  not  to  be  seen  or 
spoken  with  by  his  creditors,  except  for  just  and  necessary 
cause,  which  is  likewise  construed  to  be  an  intention  to  de- 
fraud his  creditors,  by  avoiding  the  process  of  the  law^ 
4.  Procuring  or  suffering  himself  willing  to  be  arrested, 
or  outlawed,  or  imprisoned,  without  just  and  lawful  cause ; 
which  is  likewise  deemed  an  attempt  to  defraud  his  cred- 
itors. 5. .  Procuring  his  money,  goods,  chattels,  and  effects, 
to  be  attached  or  sequestered  by  any  legal  process;  which 
is  another  plan  and  direct  endeavor  to  disappoint  his  cred- 
itors of  their  security.  6.  Making  any  fraudulent  convey- 
ance to  a  friend,  or  secret  trustee,  of  his  lands,  tenements, 
goods,  or  chattels;  which  is  an  act  of  the  same  suspicious 
nature  with  the  last.  7.  Procuring  any  protection,  not 
being  himself  privileged  by  parliament,  in  order  to  screen 
his  person  from  arrests;  which  also  is  an  endeavor  to  elude 
the  justice  of  the  law.  8.  Endeavoring  or  desiring,  by 
any  petition  to  the  king,  or  bill  exhibited  in  any  of  the 
king's  courts  against  any  creditors,  to  compel  them  to  take 
less  than  their  just  debts;  or  to  procrastinate  the  time  of 
payment  originally  contracted  for;  which  are  an  acknowl- 
edgment of  either  his  poverty  or  his  knavery.  9.  Lying  in 
prison  for  two  months,  or  more,  upon  arrest  or  other  deten- 
tion for  debt,  without  finding  bail  in  order  to  obtain  his 


304  Of  Title  by  Bankruptcy.  [Book  TI. 

liberty.  10.  Escaping  from  prison  after  an  arrest  for  a 
just  debt  of  100^  or  upwards.  [479]  For,  no  man  would 
break  prison,  that  was  able  and  desirious  to  procure  bail; 
which  brings  it  within  the  reason  of  the  last  case.  11.  Neg- 
lecting to  make  satisfaction  for  any  just  debt  to  the  amount 
of  100/.  within  two  months  after  service  of  legal  process 
for  such  debt,  upon  any  trader  having  privilege  of  parlia- 
ment. 

These  are  the  several  acts  of  bankruptcy,  expressly  de- 
fined by  the  statutes  relating  to  this  title,^  which  being  so 
numerous,  and  the  whole  law  of  bankrupts  being  an  innova- 
tion on  the  common  law,  our  courts  of  justice  have  been 
tender  of  extending  or  multiplying  acts  of  bankruptcy  by 
any  construction  or  implication. 

3.  The  proceedings  on  a  commission  of  bankrupt;  so  far 
as  they  affect  the  bankrupt  himself.  [480]  And  these  de- 
pend entirely  on  the  several  statutes  of  bankruptcy;  all 
which  I  shall  endeavor  to  blend  together,  and  digest  into  a 
concise  methodical  order. 

And,  first,  there  must  be  a  petition^  to  the  Lord 'Chancel- 
lor by  one  creditor  to  the  amount  of  100/.,  or  by  two  to  the 
amount  of  150/.^  or  by  three  or  more  to  the  amount  of  200/.; 
which  debts  must  be  proved  by  affidavit,  upon  which  he 
grants  a  commission  to  such  discreet  persons  as  to  him  shall 
seem  good,  who  are  then  stiled  commissioners  of  bankrupt. 
The  petitioners,  to  prevent  malicious  applications,  must  he 
bound  in  a  security  of  200/.  to  make  the  party  amends  in 
case  they  do  not  prove  him  a  bankrupt.     When  the  com- 

8.  The  acts  of  bankruptcy  under  the  (5)    admitting  in  writing  .his  inabil- 

United  States  statute  consist  in  gen-  ity  to  pay  his  debts  and  his  willing- 

eral   terms   of    (1)    fraudulently   con-  ness  to  be  adjudged  a  bankrupt, 

veying  or  concealing,  etc.,  of  his  prop-  9.  As     to     the     petition,     process^ 

erty  with  intent  to  defraud  his  cred-  pleadings  and  adjudication,  see,  gen- 

itors;     (2)    a   preference   by   transfer  erally,   Collier   on   Bankruptcy    (10th 

of  his  property  while  insolvent,  of  one  Ed.,  1914),  406  et  seq.    The  scope  of 

or  more  of  his  creditors;    (3)   suffer-  this  work  will  not  Avarrant  the  space 

ing  a  creditor  to  obtain  a  preference  necessary  for  a   full  consideration  of 

by  Ifgal   proceedings,  etc.;    (4)    mak-  this   subject.      See,   generally,   Collier 

ing    a    general    a.ssignment    for    the  on  Bankruptcy,  which  is  tiie  most  re- 

lenefit  of  his  creditors,  or  being  in-  cent   work  on   this   subject. 
Bolvent   applying   for    a   receiver;    or 


Chap.  XXXL]       Of  Title  by  Bankbuptcy.  395 

mission  is  awarded  and  issued,  the  commissioners  are  to 
meet,  at  their  own  expense,  and  to  take  ah  oath  for  the  due 
execution  of  their  commission,  and  to  be  allowed  a  sum  not 
exceeding  20.s\  per  diem  each,  at  every  sitting.  And  no  com- 
mission of  bankrupt  shall  abate,  or  be  void,  upon  any  demise 
of  the  crown. 

When  the  commissioners  have  received  their  commission, 
they  are  first  to  receive  proof  of  the  person's  being  a  trader, 
and  having  committed  some  act  of  bankruptcy;  and  then  to 
declare  him  a  bankrupt,  if  proved  so;  and  to  give  notice 
thereof  in  the  Gazette,  and  at  the  same  time  to  appoint  three 
meetings.  At  one  of  these  meetings  an  election  must  be 
made  of  assignees,  or  persons  to  whom  the  bankrupt's  estate 
shall  be  assigned,  and  in  whom  it  shall  be  vested  for  the 
benefit  of  the  creditors;  which  assignees  are  to  be  chosen  by 
the  major  part,  [481]  in  value,  of  the  creditors  who  shall 
then  have  proved  their  debts :  but  may  be  originally  appointed 
by  the  commissioners,  and  afterwards  approved  or  rejected 
by  the  creditors:  but  no  creditor  shall  be  admitted  to  vote  in 
the  choice  of  assignees,  whose  debt  on  the  balance  of  ac- 
counts does  not  amount  to  10/.  And  at  the  third  meeting,  at 
farthest,  which  must  be  on  the  forty-second  day  after  the 
advertisement  in  the  Gazette  (unless  the  time  be  enlarged  by 
the  Lord  Chancellor),  the  bankrupt,  upon  notice  also  per- 
sonally served  upon  him,  or  left  at  his  usual  place  of  abode, 
must  surrender  himself  personally  to  the  commissioners; 
which  surrender  (if  voluntary)  protects  him  from  all  arrests 
till  his  final  examination  is  past :  and  he  must  thenceforth  in 
all  respects  conform  to  the  directions  of  the  statutes  of  bank- 
ruptcy;  or,  in  default  of  either  surrenderor  conformity,  shall 
be  guilty  of  felony  without  benefit  of  clergy,  and  shall  suf- 
fer death,  and  his  goods  and  estate  shall  be  distributed  among 
his  creditors.^ 

In  case  the  bankrupt  absconds,  or  is  likely  to  run  away, 
between  the  time  of  the  commission  issued,  and  the  last  day 
of  surrender,  he  may  by  warrant  from  ^ny  judge  or  justice 
of  the  peace  be  apprehended  and  committed  to  the  county 
gaol,  in  order  to  be  forthcoming  to  the  commissioners;  who 

1.  The  rigor  of  the  law  lias  in  tliis   respect  been  relaxed. 


39G  Of  Title  by  Bankruptcy.  [Book  IT. 

are  also  empowered  immediately  to  grant  a  warrant  for  seiz- 
ing his  goods  and  papers. 

When  the  bankrupt  appears,  the  commissioners  are  to 
examine  him  touching  all  matters  relating  to  his  trade  and 
effects.  Thev  may  also  summon  before  them,  and  examine 
the  bankrupt's  wife  and  any  other  person  whatsoever,  as  to 
all  matters  relating  to  the  bankrupt's  affairs.  And  in  case 
any  of  them  shall  refuse  to  answer,  or  shall  not  answer  fully,' 
to  any  lawful  question,  or  shall  refuse  to  subscribe  such  their 
examination,  the  commissioners  may  commit  them  to  prison 
without  bail,  till  they  submit  themselves  and  make  and  sign 
a  full  answer;  the  commissioners  specifying  in  their  warrant 
of  commitment  the  question  so  refused  to  be  answered.  And 
any  gaoler  permitting  such  person  to  escape  or  go  out  of 
prison,  shall  forfeit  500?.  to  the  creditors. 

The  bankrupt,  upon  this  examination,  is  bound  upon 
pain  of  death,  [482]  to  make  a  full  discovery  of  all  his  es- 
tate and  effects,  as  well  in  expectancy  as  possession,  and 
how  he  has  disposed  of  the  same;  together  with  all  books 
and  writings  relating  thereto:  and  is  to  deliver  up  all  in  his 
own  power  to  the  commissioners  (except  the  necessary  ap- 
parel of  himself,  his  wife,  and  his  children) ;  or,  in  c^se  he 
conceals  or  embezzles  any  effects  to  the  amount  of  20/.,  or 
withholds  any  books  or  writings,  with  intent  to  defraud  his 
creditors,  he  shall  be  guilty  of  felony  without  benefit  of 
clergy;  and  his  goods  and  estates  shall  be  divided  among 
his  creditors.  And  unless  it  shall  appear  that  his  inability 
to  pay  his  debts  arose  from  some  casual  loss,  he  may,  upon 
conviction  by  indictment  of  such  gross  misconduct  and  neg- 
ligence, be  set  upon  the  pillory  for  two  hours,  and  have  one 
of  his  ears  nailed  to  the  same  and  cut  off. 

After  the  time  allowed  to  the  bankrupt  for  such  discovery 
is  expired,  any  other  person  voluntarily  discovering  any  part 
of  his  estate,  before  unknown  to  the  assignees,  shall  l>e  enti- 
tled to  five  per  cent,  out  of  the  effects  so  discovered,  and  such 
further  reward  as  the  assignees  and  commissioners  shall 
think  proper.  And  any  trustee  wilfully  concealing  the  estate 
of  any  bankrupt,  after  the  expiration  of  the  two  and  forty 
days,  shall  forfeit  100/..  and  double  the  value  of  the  estate 
concealed,  to  the  creditors. 


CiiAP.  XXXL]      Of  Title  by  Bankruptcy.  397 

Hitherto,  every  thing  is  in  favor  of  the  creditors;  and  the 
law  seems  to  be  pretty  rigid  and  severe  against  the  bankrupt; 
but,  in  case  he  proves  honest,  it  makes  him  full  amends  for  all 
this  rigor  and  severity.  For,  if  the  bankrupt  hath  made  an 
ingenuous  discovery  (of  the  truth  and  sufficiency  of  which 
there  remains  no  reason  to  doubt),  and  hath  conformed  in 
all  points  to  the  directions  of  the  law;  and  if,  in  consequence 
thereof,  the  creditors,  or  four  parts  in  five  of  them  in  num- 
ber and  value  (but  none  of  them  creditors  for  less  than  201.), 
will  sign  a  certificate  to  that  purport;  the  commissioners  are 
then  to  authenticate  such  certificate  under  their  hands  and 
seals,  and  to  transmit  it  to  the  Lord  Chancellor;  and  he,  or 
two  of  the  judges  whom  he  shall  appoint,  on  oath  made  by 
the  bankrupt  that  such  certificate  was  obtained  without 
fraud,  may  allow  the  same;  or  disallow  it,  upon  cause  shewn 
by  any  of  the  creditors  of  the  bankrupt.    [483] 

If  no  cause  be  shewn  to  the  contrary,  the  certificate  is  al- 
lowed of  course;  and  then  the  bankrupt  is  entitled  to  a 
decent  and  reasonable  allowance  out  of  his  effects,  for  his 
future  support  and  maintenance,  and  to  put  him  in  a  way  of 
honest  industry.  This  allowance  is  also  in  proportion  to  his 
former  good  behavior,  in  the  early  discovery  of  the  decline 
of  his  affairs,  and  thereby  giving  his  creditors  a  larger  divi- 
dend. For,  if  his  effects  will  not  pay  one-half  of  his  debts, 
or  ten  shillings  in  the  pound,  he  is  left  to  the  discretion  of  the 
commissioners  and  assignees,  to  have  a  competent  sum  al- 
lowed him,  not  exceeding  tJiree  per  cent.;  but  if  they  pay 
ten  shillings  in  the  pound,  he  is  allowed  five  per  cent.;  if 
twelve  shillings  and  six-pence,  then  seven  and  a  half  per 
cent.;  and  if  fifteen  shillings  in  the  pound,  then  the  bankrupt 
shall  be  allowed  ten  per  cent.;  provided  that  such  allowance 
do  not,  in  the  first  case,  exceed  200?.^  in  the  second,  250?., 
and  in  the  third,  300/. 

Besides  this  allowance,  he  has  also  an  indemnity  granted 
him,  of  being  free  and  discharged  for  ever  from  all  debts 
owing  by  him  at  the  time  he  became  a  bankrupt;  even 
though  judgment  shall  have  been  obtained  against  him,  and 
he  lies  in  prison  upon  execution  for  such  debts;  and,  for 
that,  among  other  purposes,  all  proceedings  on  commissions 


398  "  Of  Title  by  BANKRtJPTCY.  [Book  TI. 

of  bankrupt  are,  on  petition,  to  be  entered  of  record,  as  a 
perpetual  bar  against  actions  to  be  commenced  on  this 
account:  though,  in  general,  the  production  of  the  certifi- 
cate, properly  allowed,  shall  be  sufficient  evidence  of  all 
previous  proceedings.  Thus,  the  bankrupt  becomes  a 
clear  man  again:  and,  by  the  assistance  of  his  allowance  and 
his  own  industry,  may  become  a  useful  member  of  the  com- 
monwealth; which  is  the  rather  to  be  expected,  as  he  can- 
not be  entitled  to  these  benefits,  unless  his  failures  have 
been  owing  to  misfortunes,  rather  than  to  misconduct  and 
extravagance.   [484] 

4.  How  such  proceedings  affect  or  transfer  the  estate 
and  property  of  the  bankrupt.  At  present,  we  are  only 
to  consider  the  transfer  of  things  personal  by  this  operation 
of  law. 

By  virtue  of  the  statutes  before  mentioned,  all  the  personal 
estate  and  effects  of  the  bankrupt  are  considered  as  vested, 
hy  the  act  of  bankruptcy,  in  the  future  assignees  of  his  com- 
missioners, whether  th^y  be  goods  in  actual  possession,  or 
debts,  contracts,  and  other  choses  in  action:  and  the  commis- 
sioners by  their  warrant  may  cause  any  house  or  tenement 
of  the  bankrupt  to  be  broke  open,  in  order  to  enter  upon  and 
seize  the  same.  And  when  the  assignees  are  chosen  or  a\y- 
proved  by  the  creditors,  the  commissioners  are  to  assign 
every  thing  over  to  them;  and  the  property  of  every  part  of 
the  estate  is  thereby  as  fully  vested  in  them,  as  it  was  in  the 
bankrupt  himself,  and  they  have  the  same  remedies  to  re- 
cover it. 

The  property  vested  in  the  assignees  is  the  whole  that 
the  bankrupt  had  in  himself,  at  the  time  he  committed  tho 
first  act  of  bankruptcy,  or  that  has  been  vested  in  him  since, 
before  his  debts  are  satisfied  or  agreed  for.  Therefore,  it  is 
usually  said,  that  once  a  bankrupt,  and  always  a  bankrupt; 
by  which  is  meant,  that  a  plain  direct  act  of  bankruptcy  once 
[48G]  committed  cannot  be  purged  or  explained  away  by 
any  subsequent  conduct,  as  a  dubious  equivocal  act  may  be; 
but  that,  if  a  commission  is  afterwards  awarded,  the  com- 
mission and  the  property  of  the  assignee  shall  have  a  relation, 
or  reference,  back  to  the  first  and  original  act  of  bankruptcy. 


Chap.  XXXL]      Of  Title  by  BAifKKUPTCY.  399 

Insomuch  that  all  transactions  of  the  bankrupt  are  from  that 
time  absolutely  null  and  void,  either  with  regard  to  the 
alienation  of  his  property,  or  the  receipt  of  his  debts  from 
such  as  are  privy  to  his  bankruptcy;  for  they  are  no  longer 
his  property,  or  his  debts,  but  those  of  the  future  assignees. 
And  if  an  execution  be  sued  out,  but  not  served  and  executed 
on  the  bankrupt's  effects,  till  after  the  act  of  bankruptcy,  it 
is  void  as  against  the  assignees.  But  the  king  is  not  bound 
by  this  fictitious  relation,  nor  is  he  within  the  statutes  of 
bankrupts,  for,  if,  after  the  act  of  bankruptcy  committed, 
and  before  the  assignment  of  his  effects,  an  extent  issues  for 
the  debt  of  the  crown,  the  goods  are  bound  thereby. 

The  assignees  may  pursue  any  legal  method  of  recovering 
this  property  so  vested  in  them,  by  their  own  authority;  but 
[487]  cannot  commence  a  suit  in  equity,  nor  compound  any 
debts  owing  to  the  bankrupt,  nor  refer  any  matters  to  arbi- 
tration, without  the  consent  of  the  creditors,  or  the  major 
part  of  them  in  value,  at  a  meeting  to  be  held  in  pursuance 
of -notice  in  the  Gazette. 

When  they  have  got  in  all  the  effects  they  can  reasonably 
hope  for,  and  reduced  them  to  ready  money,  the  assignees 
must,  after  four  and  within  twelve  months  after  the  commis- 
sion issued,  give  one-and-twenty  days'  notice  to  the  creditors 
of  a  meeting  for  a  dividend  or  distribution;  at  which  time 
they  must  produce  their  accounts,  and  verify  them  upon 
oath,  if  required.  And  then  the  commissioners  shall  direct 
a  dividend  to  be  made,  at  so  much  in  the  pound,  to  all  cred- 
itors who  have  before  proved,  or  shall  then  prove,  their  debts. 
This  dividend  must  be  made  equally,  and  in  a  rateable  pro- 
portion, to  all  the  creditors,  according  to  the  qiiantiti/  of 
their  debts;  no  regard  being  had  to  the  quality  of  them. 
Mortgages,  indeed,  for  which  the  creditor  has  a  real  security 
in  his  own  hands,  are  entirely  safe;  for  the  commission  of 
bankrupt  reaches  only  the  equity  of  redemption.  So  are  also 
personal  debts,  where  the  creditor  has  a  chattel  in  his  hands, 
as  a  pledge  or  pawn  for  the  payment,  or  has  taken  the  debtor's 
lands  or  goods  in  execution.  And,  upon  the  equity  of  the 
statute  8  Ann.  c.  14  (wliich  directs,  that,  upon  all  executions 
of  goods  being  on  any  premises  demised  to  a  tenant,  one 


400  Of  Title  by  Bankruptcy.  [Book  H, 

year's  rent,  and  no  more,  shall,  if  due,  be  paid  to  the  land- 
lord), it  hath  also  been  held,  that,  under  a  commission  of 
bankrupt,  which  is  in  the  nature  of  a  statute-execution,  the 
landlord  shall  be  allowed  his  arrears  of  rent  to  the  same 
amount,  in  preference  to  other  creditors,  even  though  he 
hath  neglected  to  distrain,  while  the  goods  remained  on  the 
premises;  which  he  is  otherwise  entitled  to  do  for  his  entire 
rent,  be  the  quantum  what  it  may.  But,  otherwise,  judg- 
ments and  recognizances  (both  which  are  debts  of  record, 
and  therefore  at  other  times  have  a  priority),  and  also  bonds 
and  obligations  by  deed  or  special  instrument  (which  are 
called  debts  by  specialty,  and  are  usually  the  next  in  or- 
der), these  are  all  put  on  a  level  with  debts  by  mere  simple 
contract,  and  all  paid  pari  passu.^   [488] 

Within  eighteen  months  after  the  commission  issued,  a 
second  and  final  dividend  shall  be  made,  unless  all  the  effects 
where  exhausted  by  the  first.  And  if  any  surplus  remains, 
after  selling  his  estates  and  paying  every  creditor  his  full 
debt,  it  shall  be  restored  to  the  bankrupt. 

8.  Equally. 


Chap.  XXXII.]     Of  Title  by  Testament.  401 

CHAPTEE  XXXII. 

OF    TITLE    BY    TESTAMENT    AND    ADMINISTKATION, 

XL,  XII.  First,  as  to  the  original  of  testaments  and  ad- 
ministrations. [489]  When  property  came  to  be  vested  in 
individuals  by  the  right  of  occupancy,  it  became  necessary 
for  the  peace  of  society  that  this  occupancy  should  be  con- 
tinued, not  only  in  the  present  possessor,  but  in  those  per- 
sons to  whom  he  should  think  proper  to  transfer  it,  which 
introduced  the  doctrine  and  practice  of  alienations,  gifts, 
and  contracts.  [490]  But  these  precautions  would  be  very 
short  and  imperfect  if  they  were  confined  to  the  life  only  of 
the  occupier,  for  then,  upon  his  death,  all  his  goods  would 
again  become  common,  and  create  an  infinite  variety  of 
strife  and  confusion.  The  law  of  very  many  societies  has 
therefore  given  to  the  proprietor  a  right  of  continuing  his 
property  after  his  death,  in  such  persons  as  he  shall  name; 
and  in  defect  of  such  appointment  or  nomination,  or  where 
no  nomination  is  permitted,  the  law  of  every  society  has 
directed  the  goods  to  be  vested  in  certain  particular  indi- 
viduals, exclusive  of  all  other  persons.  The  former  method 
of  acquiring  personal  property,  according  to  the  express 
directions  of  the  deceased,  we  call  a  testament;  the  latter, 
which  is  also  according  to  the  will  of  the  deceased,  not  ex- 
pressed, indeed,  but  presumed  by  the  law,  we  call  in  Eng- 
land an  administration,  being  the  same  which  the  civil  law- 
yers term  a  succession  ab  intestato,^  and  which  answers  to 
the  descent  or  inheritance  of  real  estates. 

Testaments  are  of  very  high  antiquity.  With  us  in  Eng- 
land this  power  of  bequeathing  is  coeval  with  the  first  rudi- 
ments of  the  law.  [491]  But  we  are  not  to  imagine  that 
this  power  of  bequeathing  extended  originally  to  all  a 
man's  personal  estate.  On  the  contrary,  Glanvil  will  in- 
form us  that  by  the  common  law,  as  it  stood  in  the  reign 
of  Henry  II.,  a  man's  goods  were  to  be  divided  into  three 
equal  parts,  of  which  one  went  to  his  heirs  or  lineal  de- 

1.  From  one  dying  without  a  will. 

26  ■ 


402  Of  Title  by  Testament.  [Book  II. 

scendants,  another  to  his  wife,  and  the  third  was  at  his 
own  disposal;  or  if  he  died  without  a  wife,  he  might  then 
dispose  of  one  moiety,  and  the  other  went  to  his  children. 
And  so  e  converso^  if  he  had  no  children  the  wife  was  enti- 
tled to  one  moiety,  and  he  might  bequeath  the  other;  hut 
if  he  died  without  either  wife  or  issue,  the  whole  was  at  his 
own  disposal.  [492]  The  shares  of  the  wife  and  children 
were  called  their  reasonable  parts,  and  the  writ  de  ration- 
uhili  parte  honorum^  was  given  to  recover  them.  ' 

This  continued  to  be  the  law  of  the  land  at  the  time  of 
Magna  Carta,  and  in  the  reign  of  King  Edward  III.  this 
right  of  the  wife  and  children  was  still  held  to  be  the  uni- 
versal or  common  law,  though  frequently  pleaded  as  the 
local  custom  of  Berks,  Devon,  and  other  counties;  and 
Sir  Henry  Finch  lays  it  down  expressly  in  the  reign  of 
Charles  I.  to  be  the  general  law  of  the  land.  But  this  law 
is  at  present  altered  by  imperceptible  degrees,  and  the  de- 
ceased may  now,  by  will,  bequeath  the  whole  of  his  goods 
and  chattels,  though  we  cannot  trace  out  when  first  this 
alteration  began. 

In  case  a  person  made  no  disposition  of  such  of  his  goods 
as  were  testable,  whether  that  were  only  part  or  the  whole 
of  them,  he  was  and  is  said  to  die  intestate;  and  in  such 
cases  it  is  said  that  by  the  old  law  the  king  was  entitled  to 
seize  upon  his  goods  as  the  parens  patriae*  and  general 
trustee  of  the  kingdom.  [494]  This  prerogative  the  king 
continued  to  exercise  for  some  time  by  his  own  ministers  of 
justice,  and  probably  in  the  county  court,  where  matters  of 
all  kinds  were  determined.  Afterwards  the  goods  of  intes- 
tates were  given  to  the  ordinary  by  the  crown,  and  he  might 
seize  them  and  keep  them  without  wasting,  and  also  might 
give,  aliene,  or  sell  them  at  his  will  and  dispose  of  the  money 
in  pios  iisus;^  and  if  he  did  otherwise  he  broke  the  confidence 
which  the  law  reposed  in  him.  So  that,  properly,  the  whole 
interest  and  power  which  were  granted  to  the  ordinary  were 

2.  On  tlie  contrary.  5.  In   pious  uses.     The  most   pious 

3.  Frsr  a  reasonable  part  of  the  use  to  which  he  could  bestow  them 
gfcds.  was   usually    to    his    own    individual 

4.  Parent  of  the  state.  use. 


Chap.  XXXIL]     Of  Title  by  Testament.  -  403 

only  those  of  being  the  king's  almoner  within  his  diocese  in 
trust  to  distribute  the  intestate's  goods  in  charity  to  the 
poor,  or  in  such  superstitious  uses  as  the  mistaken  zeal  of 
the  times  had  denominated  pious.  And  as  he  had  thus  the 
disposition  of  intestates'  effects,  the  probate  of  wills  of 
course  followed;  for  it  was  thought  just  and  natural  that 
the  will  of  the  deceased  should  be  proved  to  the  satisfaction 
of  the  prelate,  whose  right  of  distributing  his  chattels  for  the 
good  of  his  soul  was  effectually  superseded  thereby.  Thus 
the  popish  clergy  took  to  themselves  (under  the  name  of 
the  church  and  poor)  the  whole  residue  of  the  deceased's 
estate  after  the  partes  rationahilesj^  or  two  thirds,  of  the 
wife  and  children  were  deducted,  without  paying  even  his 
lawful  debts  or  other  charges  thereon.  [495]  For  which  rea- 
son it  was  enacted  by  the  statute  of  Westm.  2,  that  the  or- 
dinary shall  be  bound  to  pay  the  debts  of  the  intestate,  so 
far  as  his  goods  will  extend,  in  the  same  manner  that  execu- 
tors were  bound  in  case  the  deceased  had  left  a  will, —  a 
use  more  truly  pious  than  any  requiem  or  mass  for  his  soul. 
But  though  they  were  now  made  liable  to  the  creditors  of 
the  intestate  for  their  just  and  lawful  demands,  yet  the 
residuum/  after  payment  of  debts,  remained  still  in  their 
hands  to  be  applied  to  whatever  purposes  the  conscience  of 
the  ordinary  should  approve.  The  flagrant  abuses  of  w^hich 
power  occasioned  the  legislature  again  to  interpose,  in  order 
to  prevent  the  ordinaries  from  keeping  any  longer  the  ad- 
ministration in  their  own  hands  or  those  of  their  immediate 
dependents;  and,  therefore,  the  statute  31  Edw.  III.  c.  11, 
provides  that,  in  case  of  intestacy,  the  ordinary^  shall  de- 
pute the  nearest  and  most  lawful  friends  of  the  deceased  to 
administer  his  goods,  which  administrators  are  put  upon 
the  same  footing  with  regard  to  suits  and  to  accounting  as 
executors  appointed  by  will.  [496]  This  is  the  original  of 
administrators  as  they  at  present  stand,  who  are  only  the. 
officers  of  the  ordinary,  appointed  by  him  in  pursuance  of 
this  statute,  which  singles  out  the  next  and  most  lawful 

6.  Reasonable  parts.  countrj^    is    variously    vested    in    pro- 

7.  Residue.  bate,      county,      surrogate,      orphan's 

8.  Probate     jurisdiction      in      this      courts,  etc.     See  the  local  statutes. 


404  Of  Title  by  Testament.  [Book  IL 

friend  of  the  intestate,  who  is  interpreted  to  be  the  next 
of  blood  that  is  under  no  legal  disabilities.  The  statute 
21  Hen.  VIII.  c.  5,  enlarges  a  little  more  tlie  i)ower  of  the 
ecclesiastical  judge,  and  permits  him  to  ^ant  administra- 
tion either  to  the  widow  or  the  next  of  kin,  or  to  both  of 
them  at  his  own  discretion,  and  where  two  or  more  persons 
are  in  the  same  degree  of  kindred,  gives  the  ordinary  his 
election  to  accept  whichever  he  pleases.  Upon  this  footing 
stands  the  general  law  of  administrations  at  this  day.*^ 

Secondly,  who  may  or  may  not  make  a  testament,  or 
what  persons  are  absolutely  obliged  by  law  to  die  intestate.^ 
Regularly,  every  person  hath  full  power  and  liberty  to 
make  a  will  that  is  not  under  some  special  prohibition  by 
law  or  custom,  which  prohibitions  are  principally  upon 
three  accounts :  for  want  of  sufficient  discretion,  for  want  of 
sufficient  liberty  and  free  will,  and  on  account  of  their  crim- 
inal conduct.   [497] 

1.  In  the  first  species  are  to  be  reckoned  infants  under  the 
age  of  fourteen  if  males,  and  twelve  if  f emales.^    Madmen, 

9.  To  whom   the  administration  of  signed    by    tlie    testator    liimself    and 

an  intestate's  estate  shall  be  granted  needs  no  witnisses.     They  are  lawful 

now  depends  wholly   upon   local  stat-  in     the     province     of     Manitoba,     in 

utes.     Schouler  on  Wills  and  Admin-  Louisiana,    Mississippi    and    perhaps 

istratjon,    349,    351.  other  states.     Schouler  on  Wills,  3.  4 

"  The  fundamental  principle  of  both  and  notes;   La.   Civ.  Code,  art.   1581. 

English  and  American  enactments  now  A    "mystic  testament,"  consists   in 

in  force  on  this   subject  is,  that  the  inclosing  one's   instruments  of   dispo- 

right  to  administer  whenever  the  de-  sition   in  an  envelope  and   sealing   it 

ceased  chose  no  executor,  shall  go  ac-  in    presence    of    witnesses.      La.    Civ. 

cording   to   the   beneficial"  interest   in  Code,    arts.    1577-1580;    Schouler    on 

the   estate;    a    principle    which    may  Wills,  3  and  note, 

yield,  however,  to  other  considerations  Nuncupative   wills   permit   the   tes- 

of     sound     policy     and     convenience.  iator  to  make  a  testamentary  dis])o- 

Schouler    on    Wills    and    Administra-  sition  in  extremis  before  a  sufficient 

tion,  349.     As  to  the  right  of  a  sur-  number   of    witnesses   by   whose   oral 

viving  husband  or  wife  to  administer,  testimony    it    is    subsequently     estab- 

sce  Td.,  349,  350.     As  to  the  rule  be-  lished.     Schouler  on  Wills,  3. 

tween    widow    and    kindred,    see    Id.,  2.  The  age  of  testamentary  capacity 

351,  352.  is    usually    fixed   by   statute     in     the 

1.  Besid:s   ordinary  last   wills  and  United  States  and  in  England  at  21, 

testaments    there    are    also    in    some  though    it    is    less    than    21    in   some 

states   holographic   and   mystic   wills,  states.     Schouler   on   Wills,   21. 
The   former    is   wholly    written    and 


Chap.  XXXIL]     Of  Title  by  Testament.  405 

or  otherwise  non  compotes,  idiots,  or  natural  fools,  persons 
grown  childish  by  reason  of  old  age  or  distemper,  such  as 
have  their  senses  besotted  with  drunkenness  —  all  these  are 
incapable  by  reason  of  mental  disability  to  make  any  will  so 
long  as  such  disability  lasts.  To  this  class  may  be  referred 
such  persons  as  are  horn  deaf,  blind,  and  dumb,  who,  as 
they  have  always  wanted  the  common  inlets  of  understand- 
ing, are  incapable  of  having  animum  testandiy^  and  their 
testaments  are  therefore  void.* 

2.  Such  persons  as  are  intestable  for  want  of  liberty  or 
freedom  of  will  are,  by  the  civil  law,  of  various  kinds,  as 
prisoners,  captives,  and  the  like.  But  the  law  of  England 
does  not  make  such  persons  absolutely  intestable,  but  only 
leaves  it  to  the  discretion  of  the  court  to  judge  upon  the 
consideration  of  their  particular  circumstances  of  duress, 
whether  or  no  such  person  could  be  supposed  to  have  lih- 
erum  animum  testandi.  And  with  regard  to  feme-coverts, 
with  us  a  married  woman  is  not  only  utterly  incapable  of 
devising  lands,  being  excepted  out  of  the  statute  of  wills, 
34  &  35  Hen.  VIII.  c.  5,  but  also  she  is  incapable  of  making 
a  testament  of  chattels  without  the  license  of  her  husband.^ 
[498]  Yet  by  her  husband's  license  she  may  make  a  testa- 
ment, and  the  husband,  upon  marriage,  frequently  covenants 
with  her  friends  to  allow  lier  that  license ;  but  such  license  is 
more  properly  his  assent,  for  unless  it  be  given  to  the  par- 
ticular will  in  question  it  will  not  be  a  complete  testament, 
even  though  the  husband  beforehand  hath  given  her  per- 
mission to  make  a  will.     Yet  it  shall  be  sufficient  to  repel 

3.  Testamentary   capacity.  of    the    business    in    which    he   is   en- 

4.  Deaf  and  dumb  persons  are  not  gaged,  to  have  a  recollection  of  the 
now  deemed  idiots.  Brower  v.  Fisher,  property  he  means  to  dispose  of,  of 
4  John.  Ch.  441;  Ewell's  Lead.  Cases,  the  persons  who  are  the  objects  of 
721-724.  A  lower  degree  of  intellect  is  his  bounty  and  the  manner  in  which 
required  to  make  a  will  than  to  make  it  is  to  be  distributed  among  them. 
a  contract.  Converse  v.  Converse,  21  Sloan  v.  Maxwell,  3  N.  J.  Eq.  563; 
Vt.  168;  Ewell's  Lead.  Cases,  652.  To  '  Ewell's  Lead.  Cases,  643  et  seq.  and 
make  a  will  the  testator  must  have  cases  cited;  Schouler  on  Wills,  16,  31. 
a  sound  and  disposing  mind  and  mem-  5.  Changed  by  statute  to  a  greater 
ory.  In  other  words,  he  ought  to  be  or  less  extent  in  many  of  the  United 
capable  of  understanding  the  nature  States.     Schouler  on  Wills,  23,  27. 


406  Of  Title  by  Testament.  [Book  TI.  ' 

the  husband  from  his  general  right  of  administering  his 
wife's  effects,  and  administration  shall  be  granted  to  her 
appointee  with  such  testamentary  paper  annexed.  So  that, 
in  reality,  the  woman  makes  no  will  at  all,  but  only  some- 
thing like  a  w^ill,  operating  in  the  nature  of  an  appointment, 
the  execution  of  which  the  husband,  by  his  bond,  agree- 
ment, or  covenant,  is  bound  to  allow.  The  queen  consort  is 
an  exception  to  this  general  rule,  for  she  may  dispose  of 
her  chattels  by  will  without  the  consent  of  her  lord.  And 
any  feme-covert  may  make  her  will  of  goods  which  are  in 
her  possession  in  auter  droit "^  as  executrix  or  administra- 
trix, for  these  can  never  be  the  property  of  the  husband; 
and  if  she  has  any  pin-money  or  separate  maintenance,  it 
is  said  she  may  dispose  of  her  savings  thereout  by  testa- 
ment without  the  control  of  her  husband.  [499]  But  if  a 
feme-sole  makes  her  will,  and  afterwards  marries,  such  sub- 
sequent marriage  is  esteemed  a  revocation  in  law,  and  en- 
tirely vacates  the  will.'^ 

3.  Persons  incapable  of  making  testaments,  on  account  of  their  crimi< 
nal  conduct,  are,  in  the  first  place,  all  traitors  and  felons,  from  the  time 
of  conviction,  fo'r  their  goods  and  chattels  are  no  longer  at  their  own 
disposal,  but  forfeited  to  the  king.  Neither  can  a  felo  de  se  make  a  will 
of  goods  and  chattels,  for  they  are  forfeited  by  the  act  and  manner  of 
his  death;  but  he  may  make  a  devise  of  his  lands,  for  they  are  not  sub- 
jected to  any  forfeiture.  Outlaws  also,  though  it  be  but  for  debt,  are 
incapable  of  making  a  will  so  long  as  the  outlawry  subsists,  for  their 
goods  and  chattels  are  forfeited  during  that  time.  As  for  persons  guilty 
of  other  crimes  short  of  felony  (as  usurers,  libellers,  and  others  of  a 
■worse  stamp),  by  the  common  law  their  testaments  may  be  good. 

Thirdly,  what  are  the  nature  and  incidents  of  a  testa- 
ment? A  testament  is  "  the  legal  declaration  of  a  man's 
intentions,  which  he  wills  to  be  performed  after  his  death." 
[500] 

Tliese  testaments  are  divided  into  two  sorts:  written  and 
verbal,  or  nuncupative;  of  which  the  former  is  committed  to 
writing,  the  latter  depends  merely  upon  oral  evidence,  being 
declared  by  the  testator  in  extremis  before  a  sufficient  num- 
ber of  witnesses,  and  afterwards  reduced  to  writing.    A 

6.  In  another  right.  7.  Consult  the  local  statutes. 


Chap.  XXXII.]     Of  Title  by  Testament.  407 

codicil,  codicUlus,  a  little  book  or  writing,  is  a  supplement 
to  a  will,  or  an  addition  made  by  the  testator,  and  annexed 
to  and  to  be  taken  as  part  of  a  testament,  being  for  its  ex- 
planation or  alteration,  or  to  make  some  addition  to,  or  else 
some  subtraction  from,  the  former  dispositions  of  the  tes- 
tator.    This  may  also  be  either  written  or  nuncupative. 

But  as  nuncupative  wills  and  codicils  (which  were  for- 
merly more  in  use  than  at  present,  when  the  art  of  w^riting 
is  become  more  universal)  are  liable  to  great  impositions, 
and  may  occasion  many  perjuries,  tlie  statute  of  frauds, 
29  Car.  II.  c.  3,  hath  laid  them  under  many  restrictions, 
except  when  made  by  mariners  at  sea,  and  soldiers  in  actual 
service.^  As  to  all  other  persons  it  enacts:  1.  That  no 
w^ritten  will  shall  be  revoked  or  altered  by  a  subsequent 
nuncupative  one,  except  the  same  be  in  the  lifetime  of  the 
testator  reduced  to  writing  and  read  over  to  hirn,  and  ap- 
proved, and  unless  the  same  be  proved  to  have  been  so  done 
by  the  oaths  of  three  witnesses  at  the  least,  who,  by  statute 
4  &  5  Anne,  c.  16,  must  be  such  as  are  admissible  upon  trials 
at  common  law.  2.  That  no  nuncupative  w^ill  shall  in  any 
wise  be  good  w^here  the  estate  bequeathed  exceeds  30/,  un- 
less proved  by  three  such  witnesses  present  at  the  making 
thereof  (the  Roman  law  requiring  seven),  and  unless  they 
or  some  of  them  were  specially  required  to  bear  witness 
thereto  by  the  testator  himself,  and  unless  it  was  made 
in  his  last  sickness,  in  his  own  habitation  or  dwelling-house, 
or  where  he  had  been  previously  resident  ten  days  at  the 
least,  except  he  be  surprised  with  sickness  on  a  journey,  or 
from  home,  and  dies  without  returning  to  his  dwelling. 
[501]  3.  That  no  nuncupative  will  shall  be  proved  by  the 
witnesses  after  six  months  from  the  making,  unless  it  were 
put  in  writing  within  six  days.  Nor  shall  it  be  proved  till 
fourteen  days  after  the  death  of  the  testator,  nor  till  process 
hath  first  issued  to  call  in  the  widow,  or  next  of  kin,  to 
contest  it  if  they  think  proper.  Thus  hath  the  legislature 
provided  agains.t  any  frauds  in  setting  up  nuncupative  wills 
by  so  numerous  a  train  of  requisites,  that  the  thing  it-self 
has  fallen  into  disuse,  and  is  hardly  ever  heard  of  but  in  the 

8.  See  ante,  note,  and   Stim.  Am.   St.  Law,  §§  2700-2705. 


408  Of  Title  by  Testament.  [Book  II. 

only  instance  where  favor  ought  to  be  shown  to  it,  when 
the  testator  is  surprised  by  sudden  and  violent  sickness. 
The  testamentary  words  must  be  spoken  with  an  intent  to 
bequeath,  not  any  loose  idle  discourse  in  his  illness,  for  he 
must  require  the  by-standers  to  bear  witness  of  such  his 
intention;  the  will  must  be  made  at  home,  or  among  his 
family  or  friends,  unless  by  unavoidable  accidents;  to  pre- 
vent impositions  from  strangers,  it  must  be  in  his  last  sick- 
ness, for  it  he  recovers  he  may  alter  his  dispositions,  and 
has  time  to  make  a  written  will;  it  must  not  be  proved  at 
too  long  a  distance  from  the  testator's  death,  lest  the  words 
should  escape  the  memory  of  the  witnesses,  nor  yet  too 
hastily  and  without  notice,  lest  the  family  of  the  testator 
should  be  put  in  inconvenience  or  surprised. 

As  to  written  wills  they  need  not  any  witness  of  their 
publication.  I  speak  not  here  of  devises  of  lands,  which 
are  quite  of  a  different  nature,  being  conveyances  by  statute, 
unknown  to  the  feodal  or  common  law,  and  not  under  the 
same  jurisdiction  as  personal  testaments.  But  a  testament 
of  chattels,  written  in  the  testator's  own  hand,  though  it 
has  neither  his  name  nor  seal  to  it,  nor  witnesses  present  at 
its  publication,  is  good,  provided  sufficient  proof  can  be 
had  that  it  is  his  handwriting.^  And  though  written  in 
another  man's  hand,  and  never  signed  by  the  testator,  yet, 
if  proved  to  be  according  to  his  instructions  and  approved 
by  him,  it  hath  been  held  a  good  testament  of  the  personal 
estate.  [502] 

No  testament  is  of  any  effect  till  after  the  death  of  the 
testator.  And  therefore  if  there  be  many  testaments,  the 
last  overthrows  all  the  former;  but  the  republication  of  a 
former  will  revokes  one  of  a  later  date  and  establishes  the 
first  again. 

Hence  it  follows  that  testaments  may  be  avoided  three 
ways:  1.  If  made  by  a  person  laboring  under  any  of  the 
incapacities  before  mentioned;  2.  By  making  another  testa- 
ment of  a  later  date;  and  3.  By  cancelling  or  revoking  it. 

9.  In  this  country  testaments  of 
chattels  usually  require  to  be  made 
with  the  same  formalities  as  devises. 


CiiAP.  XXXII.]     Of  Title  by  Testament.  409 

For  though  I  make  a  last  Avill  and  testament  irrevocable  in 
the  strongest  words,  yet  I  am  at  liberty  to  revoke  it,  because 
my  own  act  or  words  cannot  alter  the  disposition  of  law  so 
as  to  make  that  irrevocable  which  is  in  its  own  nature 
revocable.  It  hath  also  been  held  that,  without  an  express 
revocation,  if  a  man  who  hath  made  his  will  afterwards 
marries  and  hath  a  child,  this  is  a  presumptive  or  implied 
revocation  of  his  former  will,  which  he  made  in  his  state  of 
celibacy.^  The  Romans  were  also  wont  to  set  aside  testa-, 
ments  as  being  inofficiosa,  deficient  in  natural  duty,  if  they 
disinherited  or  totally  passed  by  (without  assigning  a  true 
and  sufficient  reason)  any  of  the  children  of  the  testator. 
[503]  But  if  the  child  had  any  legacy,  though  ever  so 
small,  it  w^as  a  proof  that  the  testator  had  not  lost  his 
memory  or  his  reason,  which  otherwise  the  law  presumed, 
but  was  then  supposed  to  have  acted  thus  for  some  sub- 
stantial cause,  and  in  such  case  no  querela  inofficiosi  testa- 
menti^  was  allowed.  Hence  probably  has  arisen  that 
groundless  vulgar  error  of  the  necessity  of  leaving  the  heir 
a  shilling,  or  some  other  express  legacy,  in  order  to  disin- 
herit him  effectually;  whereas  the  law  of  England  makes 
no  such  constrained  suppositions  of  forgetfulness  or  in- 
sanity, and  therefore,  though  the  heir  or  next  of  kin  be 
totally  omitted,  it  admits  no  querela  inofficiosi  to  set  aside 
such  a  testament.^ 

Fourthly,  what  is  an  executor,  and  what  an  administrator, 
and  how  they  are  both  to  be  appointed. 

An  executor  is  he  to  whom  another  man  commits  by  will 
the  execution  of  that  his  last  will  and  testament.  And  all 
persons  are  capable  of  being  executors  that  are  capable  of 
making  wills,  and  many  others  besides,  as  feme-coverts  and 
infants;  nay,  even  infants  unborn,  or  in  ventre  sa  mere  may 
be  made  executors.  But  no  infant  can  act  as  such  till  the 
age  of  seventeen  years,  till  which  time  administration  must 

1.  See  ante,  note.  provided  for  in  the  will  take  the  same 

2.  Corapaint   of  an   undutiful   will.  share  as  if  the  testator  had  died  in- 

3.  This  is  the  general  law  of  this  testate.  See  local  statutes;  Stim. 
country  when  not  changed  by  statute.  Am.  Stat.  Law,  §§  2842-2843. 

In  some  states,  however,  children  not 


410  Of  Title  by  Testament.  [Book  II. 

be  granted  to  some  other,  durante  minore  aetate;*  in  like 
manner  as  it  may  be  granted,  durante  absentia,^  or  pendente 
lite,^  when  the  executor  is  out  of  the  realm,  or  when  a  suit 
is  commenced  in  the  ecclesiastical  court  touching  the 
validity  of  the  will.  This  appointment  of  an  executor  is 
essential  to  the  making  of  a  will,  and  it  may  be  performed 
either  by  express  words,  or  such  as  strongly  imply  the 
same.  But  if  the  testator  makes  an  incomplete  will  with- 
out naming  any  executors,  or  if  he  names  incapable  persons, 
or  if  the  executors  named  refuse  to  act,  —  in  any  of  those 
cases  the  ordinary  must  grant  administration  cum  testa- 
mento  annexo'  to  some  other  person,  and  then  the  duty  of 
the  administrator,  as  also  when  he  is  constituted  only 
durante  minore  aetate,  &c.,  of  another,  is  very  little  different 
from  that  of  an  executor.  [504] 

But  if  the  deceased  died  wholly  intestate,  without  making 
either  will  or  executors,  then  general  letters  of  administra- 
tion must  be  granted  by  the  ordinary  to  such  administrator 
as  the  statutes  of  E]dward  III.  and  Henry  VIII.,  before 
mentioned,  direct.  In  consequence  of  which  we  may  ob- 
serve: 1.  That  the  ordinary  is  compellable  to  grant  ad- 
ministration of  the  goods  and  chattels  of  the  wife  to  the 
husband,  or  his  representatives,  and  of  the  husband's  effects 
to  the  widow,  or  next  of  kin,  but  he  may  grant  it  to  either 
or  both  at  his  discretion.  2.  That  among  the  kindred,  those 
are  to  be  preferred  that  are  the  nearest  in  degree  to  the 
intestate,  but  of  persons  in  equal  degree  the  ordinary  may 
take  which  he  pleases.  3.  That  this  nearness  or  propin- 
quity of  degree  shall  be  reckoned  according  to  the  computa- 
tion of  the  civilians,^  and  not  of  the  canonists,  which  the 
law  of  England  adopts  in  the  descent  of  real  estates,  because 
in  the  civil  computation  the  intestate  himself  is  the  ter- 

4.  During  minority.  preferred  in  the  appointment,  see  Id., 

5.  During  absence.  365. 

6.  During  litigation.  8.  This     subject    is     regulatd     by 

7.  Administration  with  the  will  an-  statute  in  the  several  states,  with  the 
nexed.  English   statute   as   a   general    model. 

His  functions  are,  in  general,  those      See   Schouler   on    Wills   and   Admin., 
of   an    executor.      Schouler   on    Wills      351,  and  local   statutes. 
und  .Admin.,  365,  488.     As  to  who  is 


Chap.  XXXII.]     Of  Title  by  Administration.  411 

minus,  a  quo^  the  several  degrees  are  numbered,  and  not 
the  common  ancestor,  according  to  the  rule  of  the  canonists. 
And,  therefore,  in  the  first  place,  the  children,  or  on  failure 
of  children  the  parents,  of  the  deceased  are  entitled  to  the 
administration,  —  both  which  are  indeed  in  the  first  degree, 
but  with  us  the  children  are  allowed  the  preference.  [505] 
Then  follow  brothers,  grandfathers,  uncles,  or  nephews,  and 
the  females  of  each  class  respectively,  and  lastly,  cousins. 
4.  The  half  blood  is  admitted  to  the  administration  as  well 
as  the  whole,  for  they  are  of  the  kindred  of  the  intestate  and 
only  excluded  from  inheritances  of  land  upon  feodal  rea- 
sons. 5.  If  none  of  the  kindred  will  take  out  administra- 
tion, a  creditor  may  by  custom  do  it.  .  6.  If  the  executor 
refuses  or  dies  intestate,  the  administration  may  be  granted 
to  the  residuary  legatee,  in  exclusion  of  the  next  of  kin.  7. 
And  lastly,  the  ordinary  may,  in  defect  of  all  these,  commit 
administration,  as  he  might  have  done  before  the  statute 
of  Edward  III.,  to  such  discreet  person  as  he  approves  of; 
or  may  grant  him  letters  ad  colligendum  bona  defuncti,* 
which  neither  makes  him  executor  nor  administrator,  liis 
only  business  being  to  keep  the  goods  in  his  safe  custody, 
and  to  do  other  acts  for  the  benefit  of  such  as  are  entitled 
to  the  property  of  the  deceased. 

If  a  bastard,  who  has  no  kindred,  being  nuUius  fUiis,-  or  any  one  else 
that  has  no  kindred  dies  intestate,  and  without  wife  or  child,  it  hath 
formerly  been  held  that  the  ordinary  might  seize  his  goods  and  dispose 
of  them  in  pios  usus.  But  the  usual  course  now  is  for  some  one  to  pro- 
cure letters-patent  or  other  authority  from  the  king,  and  then  the  or- 
dinary of  course  grants  administration  to  such  appointee  of  the 
crown.   [506] 

The  interest  vested  in  the  executor  by  the  will  of  the 
deceased  may  be  continued  and  kept  alive  by  the  will  of 
the  same  executor,  so  that  the  executor  of  A's  executor  is 
to  all  intents  and  purposes  the  executor  and  representative 

of  A  himself;^  but  the  executor  of  A's  administrator,  or  the 

-^ • ^ m^ 

9.  The  terminal  from  which.  3.  Controlled     by     local     statutes, 

1.  To  collect  the  goods  of  the  de-  which  see.  See  Schouler  on  VVills  and 
ceased.  Admin.,  365  et  seq. 

2.  No  one's  son. 


412  Of  Title  by  Administration.  [Book  II. 

administrator  of  A's  executor,  is  not  the  representative  of 
A.  For  the  power  of  an  executor  is  founded  upon  the 
special  confidence  and  actual  appointment  of  the  deceased, 
and  such  executor  is  therefore  allowed  to  transmit  that 
power  to  another  in  whom  he  has  equal  confidence;  but  the 
administrator  of  A  is  merely  the  officer  of  the  ordinary, 
prescribed  to  him  by  act  of  parliament,  in  whom  the  de- 
ceased has  reposed  no  trust  at  all,  and,  therefore,  on  the 
death  of  that  officer  it  results  back  to  the  ordinary  to  ap- 
point another.  And  with  regard  to  the  administrator  of 
A's  executor,  he  has  clearly  no  privity  or  relation  to  A, 
being  only  commissioned  to  administer  the  effects  of  the 
intestate  executor,  and  not  of  the  original  testator.  Where- 
fore, in  both  these  cases,  and  whenever  the  course  of  repre- 
sentation from  executor  to  executor  is  interrupted  by  any 
one  administration,  it  is  necessary  for  the  ordinary  to 
commit  administration  afresh  of  the  goods  of  the  deceased 
not  administred  by  the  former  executor  or  administrator. 
And  this  administrator  de  bonis  non,  is  the  only  legal  repre- 
sentative of  the  deceased  in  matters  of  personal  property. 
But  he  may,  as  well  as  an  original  administrator,  have  only 
a  limited  or  special  administration  committed  to  his  care, 
viz.,  of  certain  specific  effects,  such  as  a  term  of  years  and 
the  like,  the  rest  being  committed  to  others. 

Fifthly  and  lastly,  I  proceed  to  inquire  into  some  few  of 
the  principal  points  of  the  office  and  duty  of  executors  and 
administrators.  These  in  general  are  very  much  the  same 
in  both  executors  and  administrators,  excepting,  first,  that 
the  executor  is  bound  to  perform  a  will,  which  an  adminis- 
trator is  not,  unless  where  a  testament  is  annexed  to  his 
administration,  and  then  he  differs  still  less  from  an  execu- 
tor; and,  secondly,  that  an  executor  may  do  many  acts  be- 
fore he  proves  the  will,  but  an  administrator  may  do 
nothing  till  letters  of  administration  are  issued,  for  the 
former  derives  his  power  from  the  will  and  not  from  the 
probate,  the  latter  owes  his  entirely  to  the  appointment  of 
the  ordinary.  If  a  stranger  takes  upon  him  to  act  as 
executor  without  any  just  authority,  as  by  intermeddling 
v/ith  the  goods  of  the  deceased,  and  many  other  transac- 


Ohap.  XXXII.]     Of  Title  by  Administratioit.  413 

tions,  lie  is  called  in  law  an  executor  of  his  own  wrong  {de 
son  tort),  and  is  liable  to  all  the  trouble  of  an  executorship 
without  any  of  the  profits  or  advantages ;  *  but  merely  doing 
acts  of  necessity  or  humanity,  as  locking  up  the  goods,  or 
burying  the  corpse  of  the  deceased,  will  not  amount  to  such 
an  intermeddling  as  will  charge  a  man  as  executor  of  his 
own  wrong.''  Such  a  one  cannot  bring  an  action  himself 
in  right  of  the  deceased,  but  actions  may  be  brought  against 
him.  And  in  all  actions  by  creditors  against  such  an  offici- 
ous intruder,  he  shall  be  named  an  executor  generally; 
for  the  most  obvious  conclusion  which  strangers  can  form 
from  his  conduct  is,  that  he  hath  a  will  of  the  deceased, 
wherein  he  is  named  executor,  but  hath  not  yet  taken  pro- 
bate thereof.  He  is  chargeable  with  the  debts  of  the  de- 
ceased, so  far  as  assets  come  to  his  hands,  and,  as  against 
creditors  in  general,  shall  be  allowed  all  payments  made  to 
any  other  creditor  in  the  same  or  a  superior  degree,  himself 
only  excepted.  [508]  And  though,  as  against  the  rightful 
executor  or  -administrator,  he  cannot  plead  such  payment, 
yet  it  shall  be  allowed  him  in  mitigation  of  damages ;  unless, 
perhaps,  upon  a  deficiency  of  assets,  whereby  the  rightful 
executor  may  be  prevented  from  satisfying  his  own  debt. 
But  let  us  now  see  what  are  the  power  and  duty  of  a  right- 
ful executor  or  administrator.'' 

1.  He  must  bury  the  deceased  in  a  manner  suitable  to  the 
estate  which  he  leaves  behind  him.  Necessary  funeral  ex- 
penses are  allowed  previous  to  all  other  debts  and  charges; 
but  if  the  executor  or  administrator  be  extravagant,  it  is  a 
species  of  devestation,  or  waste  of  the  substance  of  the  de- 
ceased, and  shall  only  be  prejudicial  to  himself,  and  not 
to  the  creditors  or  legatees  of  the  deceased. 

2.  The  executor  or  the  administrator  durante  minora 
setate,  or  durante  absentia,  or  cum  testamento  annexo,  must 
prove  the  will  of  the  deceased,  which  is  done  either  in 
common  form,  which  is  only  upon  his  own  oath  before  the. 
ordinary  or  his  surrogate,  or  j^er  testes,  in  more  solemn  form 

4.  See,  generally,  Schouler  on  Wills  6.  See,  generally,  Schouler  on  Wills 
and  Admin.,  ch.  8.                                          and  Admin.,  Part  4. 

5.  See   Schouler   on   Wills   and   Ad- 
min., 401. 


414  Of  Title  by  Administration.  [Book  II. 

of  law,  in  case  the  validity  of  the  will  be  disputed.  When 
the  will  is  so  proved  the  original  must  be  deposited  in  the 
registry  of  the  ordinary,  and  a  copy  thereof  in  parchment 
is  made  out  under  the  seal  of  the  ordinary,  and  delivered 
to  the  executor  or  administrator,  together  with  a  certificate 
of  its  having  been  proved  before  him;  all  which  together 
is  usually  styled  the  probate.^  In  defect  of  any  will,  the 
person  entitled  to  be  administrator  must  also  at  this  period 
take  out  letters  of  administration  under  the  seal  of  the 
ordinary,  whereby  an  executorial  power  to  collect  and  ad- 
minister, that  is,  dispose  of  the  goods  of  the  deceased,  is 
vested  in  him;  and  he  must,  by  statute  22  &  23  Car.  II.  c.  10, 
enter  into  a  bond,  with  sureties,  faithfully  ^o  execute  his 
trust. 

3.  The  executor  or  administrator  is  to  make  an  inventory 
of  all  the  goods  and  chattels,  whether  in  possession  or 
action,  of  the  deceased,  which  he  is  to  deliver  in  to  the 
ordinary  upon  oath,  if  thereunto  lawfully  required.  [510] 

4.  He  is  to  collect  all  the  goods  and  chattels  so  inven- 
toried, and  to  that  end  he  has  very  large  j^owers  and  in- 
terests conferred  on  him  by  law,  being  the  representative 
of  the  deceased,  and  having  the  same  property  in  his  goods 
as  the  principal  had  Avhen  living,  and  the  same  remedies  to 
recover  them.  And  if  there  be  two  or  more  executors,  a 
sale  or  release  by  one  of  them  shall  be  good  against  all  tlie 
rest;  but  in  case  of  administrators  it  is  otherwise.'*  What- 
ever is  so  recovered  that  is  of  a  salable  nature  and  may  be 
converted  into  ready  money,  is  called  assets  in  the  hands 
of  the  executor  or  administrator;  that  is,  sufficient  or 
enough  (from  the  French  assez)  to  make  him  chargeable 
to  a  creditor  or  legatee  so  far  as  such  goods  and  chattels 
extend.  [511]  Whatever  assets  so  come  to  his  hands  ho 
may  convert  into  ready  money,  to  answer  the  demands  that 
may  be  made  upon  him,  which  is  the  next  thing  to  be  con- 
sidered; for, 

7.  The  practice  in  probate  courts,  by  contested  will  is  by  a  bill  in  cbancerv 

what  ver  name  called,  has  a  general  in  the  circuit  court,  not  in  the  county 

Biniilarity;  btit  varies  in  detail.     The  or  probate  court, 
method    of   contest    also   differs.       In  8.  Not   so  in  the   United   States, 

lilincis,   for   example,  the   trial    of   a 


CiiAr.  XXXII.]     Of  Title  by  Administratioij^.  415 

5.  The  executor  or  administrator  must  pay  the  debts  of 
the  deceased.  In  payment  of  debts  he  must  observe  the 
rules  of  priority,  otherwise,  on  deficiency  of  assets,  if  he 
pays  those  of  a  lower  degree  first,  he  must  answer  those  of 
a  higher  out  of  his  own  estate.  And,  first,  he  may  pay  all 
funeral  charges,  and  the  expense  of  proving  the  will,  and 
the  like.  Secondly,  debts  due  to  the  king  on  record  or 
specialty.  Thirdly,  such  debts  as  are  by  particular  statutes 
to  be  preferred  to  all  others,  as  the  forfeitures  for  not  bury- 
ing in  woolen,  money  due  upon  poor  rates,  for  letters  to  the 
post-oflSce,  and  some  others.  Fourthly,  debts  of  record;  as 
judgments  (docketed  according  to  the  statute  4  &  5  W.  &  M. 
c.  20),  statutes,  and  recognizances.  Fifthly,  debts  due  on 
special  contracts,  as  for  rent  (for  which  the  lessor  has  often 
a  better  remedy  in  his  own  hands  by  distraining),  or  upon 
bonds,  covenants,  and  the  like,  under  seal.  Lastly,  debts 
on  simple  contracts,  viz.,  upon  notes  unsealed,  and  verbal 
promises.^  Among  these  simple  contracts,  servants '  wages 
are  by  some  with  reason  preferred  to  any  other;  and  so 
stood  the  ancient  law  according  to  Bracton  and  Fleta,  who 
reckon  among  the  first  debts  to  be  paid,  servita  servienthwi 
ct  stipendia  famulorum.  Among  debts  of  equal  degree,  the 
executor  or  administrator  is  allowed  to  pay  himself  first, 
by  retaining  in  his  hands  so  much  as  his  debt  amounts  to. 

9.  In  England  specialty  and  simple  (2)    The  widow's  award,  if  there  is 

contract  creditors  are  now  placed  on  a   widow;   or  children's,  if  there  are 

the  same  footing  by  statute  of  32  &  children  and  no  widow. 

33  Vict.,  ch.  46.   The  priority  of  judg-  (3)   Expenses  attending  the  last  ill- 

raent   creditors    is,   however,    still   re-  ness,    not    including    physician's    bill, 

tained.      Schouler   on   Wills   and   Ad-  and  demands  due  common  laborers  or 

min.,  502;   Wms.  Exrs.  preface,  1011.  household    servants    of    deceased    for 

The  general  tendency  of  legislation  labor, 
in  the  United  States  is  to  place  spe-  (4)    Debts   due  the   common   school 
cialty   and   simple   contract   debts   on  '  or  township  funds, 
the   same   plane.      Schouler   on    Wills  (5)    The  physician's  bill  in  the  last 
and  Admin.,  502  note;   2  Kent.  Com.  illness  of  deceased. 
418,    419.      In    Illinois,    for    example,  (6)  Trust    funds    received    by    de- 
demands    against    the    estate    of    any  ceased   and   not   accounted   for. 
testator  or  intestate  are,  after  allow-  (7)   All   other   debts   and   demands 
ance,  paid  in  the  following  order:   (1)  of   whatever  kind  without  regard   to 
Funeral  expenses   ar.d   necessary  cost  quality  or  dignity.    See  111.  Rev.  Stat., 
of  administration.  ch.  3,  sec.  70. 


416  Of  Title  by  Administkation-.  [Book  IT. 

But  an  executor  of  his  own  wrong  is  not  allowed  to  retain ; 
for  that  would  tend  to  encourage  creditors  to  strive  who 
should  first  take  possession  of  the  goods  of  the  deceased, 
and  would  besides  be  taking  advantage  of  his  own  wrong, 
which  is  contrary  to  the  rule  of  law.  If  a  creditor  consti- 
tutes his  debtor  his  executor,  this  is  a  release  or  discharge 
of  the  debt,  whether  the  executor  acts  or  no,  provided  there 
be  assets  sufficient  to  pay  the  testator's  debts;  for  though 
this  discharge  of  the  debt  shall  take  place  of  all  legacies, 
yet  it  were  unfair  to  defraud  the  testator's  creditors  of 
theii*  just  debts  by  a  release  which  is  absolutely  voluntary. 
[512]  Also,  if  no  suit  is  commenced  against  him  [and 
decree  of  payment  rendered],  the  executor  may  pay  any  one 
creditor  in  equal  degree  his  whole  debt,  though  he  has 
nothing  left  for  the  rest ;  for  without  a  suit  commenced  the 
executor  has  no  legal  notice  of  the  debt. 

6.  When  the  debts  are  all  discharged,  the  legacies  claim 
the  next  regard,^  which  are  to  be  paid  by  the  executor  so 
far  as  his  assets  will  extend;  but  he  may  not  give  himself 
the  preference  herein,  as  in  the  case  of  debts. 

A  legacy  is  a  bequest  or  gift  of  goods  and  chattels  by 
testament,  and  the  person  to  whom  it  was  given  is  styled 
the  legatee,  which  every  person  is  capable  of  being,  unless 
particularly  disabled  by  the  common  law  or  statutes,  as 
traitors,  papists,  and  some  others.  This  bequest  transfers 
an  inchoate  property  to  the  legatee,  but  the  legacy  is  not 
perfect  without  the  assent  of  the  executor;^  for  if  I  have  a 

1.  As  to  proof  and  collection  of  dence  over  legacies,  regardless  of  the 
claims  the  local  statutes  must  be  con-  testator's  wishes.  Schouler  on  Wills, 
suited  and  followed.     See  Schouler  on      530. 

Wills  and  Admin.,  502.  3.  Schouler  on  Wills,  536  and  casos 

It   is   not   enough   that  a   suit   has  cited.     The  assent  of  the  executor  is 

been  commenced  (Sorrell  v.  Carpenter,,  equally    necessary    whether    a    legacy 

2  P.  Wms.  483),  there  must  have  been  be  specific  or  merely  pecuniary  (Flan- 

a  decree  for  payment  of  debts,  or  an  ders  v.  Clarke,  3  Atk.  510;  Abney  v. 

executor  will  be  at  liberty  to  give  a  Miller,  2  Atk.  598)  ;  a  court  of  equity, 

preference,  amongst  creditors  of  equal  indeed,  will  compel   the   executor   to 

degree   (Maltby  v.  Russell,  2  Sim.  &  deliver    the    specific    article    devis<>d 

Stu.  228;    Perry  v.   Philips.   10   Ves.  (Northey  v.  Northey,  2  Atk.  77)  ;  but, 

3!).     And  see  ante,  p.  •511,  note.  as   a  general   rule,   no   action   at  law 

2.  All  valid  legal  claims  take  prece-  can  be  maintained  for  a  legacy  (Decks 


Chap.  XXXII.]     Of  Title  by  Admixistbation.  417 

general  or  pecuniary  legacy  of  1001.,  or  a  specific  one  of  a 
piece  of  plate,  I  cannot  in  either  case  take  it  without  the 
consent  of  the  executor.  For  in  him  all  the  chattels  are 
vested,  and  it  is  his  business  first  of  all  to  see  whether  there 
is  a  sufficient  fund  left  to  pay  the  debts  of  the  testator,  — 
the  rule  of  equity  being  that  a  man  must  be  just  before  he 
is  permitted  to  be  generous.  And  in  case  of  a  deficiency 
of  assets,  all  the  general  legacies  must  abate  proportionably 
in  order  to  pay  the  debts,  but  a  specific  legacy  (of  a  piece 
of  plate,  a  horse,  or  the  like)  is  not  to  abate  at  all,  or  allow 
anything  by  way  of  abatement,  unless  there  be  not  sufficient 
without  it.  [513]  Upon  the  same  principle,  if  the  legatees 
bad  been  paid  their  legacies,  they  are  afterwards  bound  to 
refund  a  ratable  part,  in  case  debts  come  in  more  than  suffi- 
cient to  exhaust  the  residuum  after  the  legacies  paid.* 

If  a  legatee  dies  before  the  testator,  the  legacy  is  a  lost  or 
lapsed  legacy,  and  shall  sink  into  the  residuum.  And  if  a 
contingent  legacy  be  left  to  any  one,  as  ivhen  he  attains,  or 
if  he  attains,  the  age  of  twenty-one,  and  he  dies  befere  that 
time,  it  is  a  lapsed  legacy.^  But  a  legacy  to  one  to  he  paid 
when  he  attains  the  age  of  twenty-one  years,  is  a  vested 
legacy,  —  an  interest  which  commences  in  praesenti,  al- 
though it  be  solvendum  in  futuro;^  and  if  the  legatee  dies 
before  that  age,  his  representative  shall  receive  it  out  of 

V.  Strutt,  5  T.  E.  692),  or  for  a  dis-  were  afterwards  to  appear,  the  court 

tributive    share    under    an    intestacy.  of  chancery  would  have  power  to  in- 

( Jones   V.   Tanner,    7   Barn.    &   Cress  terfere,  and  make  the  legatee  refund, 

544.)      It  was   held,  however,  in  Doe  in  the  proportion  required. 

V.   Guy    (3    East,    123),   to   be   clear,  4.  See,  gc'nerally,  as  to  the  payment 

from  all  the  authorities,  that  the  in-  and  satisfaction  of  legacies,  Schouler 

terest  in  anj'  specific  thing  bequeathed  on  Wills,  Part  5,  ch.  4. 

vest,  at  law,  in  the  legatee,  upon  the  5.  There  may  also  be  an  ademption 

assent    of    the    executor;    and,    there-  of  a  legacy,  which   signifies   its  revo- 

fore,   that  whenever  an   executor   has  cation  aside  from  a  revocation  of  the 

given     assent      (expressly,     and     not  will  itself.    This  may  happen  by  som? 

merely  by  implication),  to  a  specific  act  of  the  testator  which  disposes  of 

legacy,   should   he  subsequently  with-  or  destroys  the  identity  of  the  article 

hold  it,  the  legatee  may  maintain  an  bequeathed.      See   Schouler   on   Wills, 

action  at  law  for  the  recovery  of  the  527. 

interest   so  vested   in  him.     If  a  de-  6.  To  be  paid  in  the  future, 
ficiency    of    assets    to    pay    creditors 

27  '■  "^ 


418  Of  Title  by  Administration.  [Book  II. 

the  testator's  personal  estate  at  the  same  time  that  it  would 
have  become  payable  in  case  the  legatee  had  lived.  This 
distinction  is  borrowed  from  the  civil  law,  and  its  adoption 
in  our  courts  is  not  so  much  owing  to  its  intrinsic  equity  as 
to  its  having  been  before  adopted  by  the  ecclesiastical 
courts.  For  since  the  chancery  has  a  concurrent  jurisdic4r^ 
tion  with  them  in  regard  to  the  recovery  of  legacies,  it  was 
reasonable  that  there  should  be  a  conformity  in  their  de- 
terminations. But  if  such  legacies  be  charged  upon  a  real 
estate,  in  both  cases  they  shall  lapse  for  the  benefit  of  the 
heir,  for  with  regard  to  devises  affecting  lands  the  ecclesi- 
astical court  hath  no  concurrent  jurisdiction.  And  in  case 
of  a  vested  legacy  due  immediately,  and  charged  on  land 
or  money  in  the  funds,  which  yield  an  immediate  profit,  in- 
terest shall  be  payable  thereon  from  the  testator's  death; 
but  if  charged  only  on  the  personal  estate,  which  cannot 
be  immediately  got  in,  it  shall  carry  interest  only  from  the 
end  of  the  year  after  th^  death  of  the  testator.^  [514] 

Besides  these  formal  legacies,  contained  in  a  man's  will 
and  testament,  there  is  also  permitted  another  death-bed 
disposition  of  property,  which  is  called  a  donation  causa 
mortis.®     And  that  is  when  a  person  in  his  last  sickness, 

7.  With  us  interest  is  generally  al-  fore  requires  no  probate  (Ward  v. 
lowable  after  the  expiration  of  one  Turner,  2  Ves.  Sr.  435;  Ashton  v. 
year  after  the  testators  death.  Dawson,  Sel.  Ca.  in  Cha.  14);  though 
Schouler  on  Wills,  533.  a  question  has  been  made  whether,  as 

8.  See  ante,  note.  A  donatio  mor-  such  a  gift  is  only  to  take  effect  in 
tis  causa  has  many  of  the  prop-  case  of  the  donor's  death,  it  ought 
erties  of  a  legacy;  it  is  liable  to  not  to  be  held  so  far  testamentary 
debts,  and  is  dependent  on  survivor-  as  to  be  liable  to  legacy  duty.  Wood- 
ship.  Tate  V.  Hilbert,  2  Ves.  Jr.  120;  bridge  v.  Spooner,  3  Barn.  &  Aid. 
Jones   V.    Selby,    Prec.    in    Cha.    303;  236. 

Miller  v.  Miller,    3  P.  Wms.  357.     It  A  donatio  mortis  causa  plainly  dif- 

is  not  a  present  absolute  gift.  Vesting  fers  from  a  legacy'  in  this  particular 

immediately,  but  a  revocable  and  con-  — the  subject  of  gift  must  in  the  for- 

ditional  one,  of  which  the  enjoyment  mer  case  ba  delivered   by   the  donor; 

is    postponed,    till    after    the    giver's  in  the  latter  case,  by  his  representa- 

death.     Walter   v.   Hodge,   2   Swanst.  tive.      W^alter    v.    Hodge,    2    Swanst. 

98.      On   the   other    hand,    though   li-  98.      So,    the    distinction    between    a 

able  to  be  defeasanced,  it  must,  sub-  nuncupative  will,  and  a  donatio  mor- 

joct  to  such   y)ower  of  revocation,  be  tis   causa   is,   that   th?   bounty   given 

a  complete  gift  inter  vivos,  and  there-  in  the  first-named  mode  is  to  be  /  e- 


Chap.  XXXIT.]     Of  Title  by  Administkation.  419 

apprehending  his  dissolution  near,  delivers  or  causes  to  be 
delivered  to  another  the  possession  of  any  personal  goods, — 
under  which  have  been  included  bonds  and  bills  drawn  by 
the  deceased  upon  his  banker,  —  to  keep  in  case  of  his  de- 
cease. This  gift,  if  the  donor  dies,  needs  not  the  assent  of 
his  executor;  yet  it  shall  not  prevail  against  creditors,  and 
is  accompanied  with  this  implied  trust,  that  if  the  donor 
lives,  the  property  thereof  shall  revert  to  himself,  being 
only  given  in  contemplation  of  death,  or  mortis  causa. 

7.  When  all  the  debts  and  particular  legacies  are  dis- 
charged, the  surplus  or  residuum  must  be  paid  to  the  resid- 
uary legatee,  if  any  be  appointed  by  the  will;  and  if  there 
be  none,  although  where  the  executor  has  no  legacy  at  all 
the  residmim  shall  in  general  be  his  ov/n,^  yet  wherever 
there  is  sufficient  on  the  face  of  a  will,  —  by  means  of  a 
competent  legacy  or  otherwise,  —  to  imply  that  the  testator 
intended  his  executor  should  not  have  the  residue,  the  un- 
devised surplus  of  the  estate  shall  go  to  the  next  of  kin, 
the  executor  then  standing  upon  exactly  the  same  footing 
as  an  administrator,  concerning  whom,  indeed,  there  form- 
erly was  much  debate  whether  or  no  he  could  be  compelled 
to  make  any  distribution  of  the  intestate's  estate.  [515] 
For  though,  after  the  administration  was  taken  in  effect 
from  the  ordinary  and  transferred  to  the  relations  of  the 
deceased,  the  spiritual  court  endeavored  to  compel  a  dis- 
tribution and  took  bonds  of  the  administrator  for  that 
purpose,  they  were  prohibited  by  the  temporal  courts,  and 
the  bonds  declared  void  at  law.  And  the  right  of  the  hus- 
band not  only  to  administer,  but  also  to  enjoy  exclusively 
the  effects  of  his  deceased  wife,  depends  still  on  this  doc- 
trine of  the  common  law,  the  statute  of  frauds  declaring 
only  that  the  statute  of  distribution  does  not  extend  to  this 
case.  But  now  these  controversies  are  quite  at  an  end,  for 
by  the  statute  22  &  23  Car.  II.  c.  10,  explained  by  29  Car.  II. 

ceived  from  the  executor;  but  in  the  1  Sim.  &  Stu.  244;  Ward  v.  Turner, 
latter  case  may  be  held  against  him,      2  Ves.  Sr.  443. 

and   requires  no  assent  on   his   part,  9.  Not  so  with  us.     See  local  stat- 

the  delivery  having  been  completed  by  utes  which  generally  give  such  resi- 
the  donor  himself.     Duffield  v.  Elwes,      due  to  the  next  of  kin.     Schouler  on 

Wills  and  Admin.,  542. 


420  Of  Title  by  AoMimsTRATioN.  [Book  IT. 

c.  30,  it  is  enacted  that  the  surplusage  of  intestates'  estates 
(except  of  femes-covert,  which  are  left  as  at  common  law) 
shall,  after  the  expiration  of  one  full  year  from  the  death 
of  the  intestate  be  distributed  in  tlie  following  manner: 
One  third  shall  go  to  the  widow  of  the  intestate,  and  the 
residue  in  equal  proportions  to  his  children,  or,  if  dead,  to 
their  representatives,  that  is,  their  lineal  descendants.  Tf 
there  are  no  children  or  legal  representatives  subsisting, 
then  a  moiety  shall  go  to  the  widow  and  a  moiety  to  the 
next  of  kindred  in  equal  degree  and  their  representatives; 
if  no  widow,  the  whole  shall  go  to  the  children;  if  neither 
widow  nor  children,  the  Whole  shall  be  distributed  among 
the  liext  of  kin  in  equal  degree  and  their  representatives; 
but  no  representatives  are  admitted  among  collaterals 
farther  than  the  children  of  the  intestate's  brothers  and 
sisters.^  The  next  of  kindred  here  referred  to  are  to  be  in- 
-  vestigated  by  the  same  rules  of  consanguinity  as  those  who 
'  are  entitled  to  letters  of  administration,  of  whom  we  have 
sufficiently  spoken.  And  therefore  by  this  statute  the 
mother  as  well  as  the  father  succeeded  to  all  the  personal 
effects  of  their  children,  who  died  intestate  and  without 
wdfe  or  issue,  in  exclusion  of  the  other  sons  and  daughters, 
the  brothers  and  sisters  of  the  deceased.  [516]  And  so  the 
law  still  remains  with  respect  to  the  father;  but  by  statute 
I  Jac.  II.  c.  17,  if  the  father  be  dead  and  any  of  the  children 
die  intestate  without  wife  or  issue  in  the  lifetime  of  the 
mother,  she  and  each  of  the  remaining  children  or  their 
representatives  shall  divide  his  effects  in  equal  portions. 

So,  likewise,  there  is  another  part  of  the  statute  of  dis- 
tributions where  directions  are  given  that  no  child  of  the 
intestate,  —  except  his  heir  at  law,  —  on  whom  he  settled 
in  his  lifetime  any  estate  in  lands  or  pecuniary  portion 
equal  to  the  distributive  shares  of  the  other  children,  shall 
have  any.  part  of  the  surplusage  with  their  brothers  and 

1.  In  this  country  real  and  personal  fering  in  details,  are  usually  modeled 
estate,  though  they  may  pursue  dif-  after  the  English  statute  of  distribu- 
ferent  cliannels,  usually  vest  in  the  tions.  See  Schouler  on  Wills  and  Ad- 
same  persons,  the  next  of  kin.  Our  min.,  54.3;  2  Kent.  Com.  426  and 
statutes  of  distribution,   though  dif-  notes.     Consult  the  local  statutes. 


Chap.  XXXII.]     Of  Title  by  Administration.  421 

sisters;  but  if  the  estates  so  given  them  by  way  of  advance- 
ment are  not  quite  equivalent  to  the  other  shares,  the  chil- 
dren so  advanced  shall  now  have  so  much  as  will  make 
them  equal.2  [517]  It  may  not  be  amiss  to  observe  that 
with  regard  to  goods  and  chattels,  this  is  part  of  the  ancient 
custom  of  London,  of  the  province  of  York,  and  of  our 
sister  kingdom  of  Scotland;  and  with  regard  to  lands  de- 
scending in  coparcenary,  that  it  hath  always  been  and  still 
is  the  common  law  of  England  under  the  name  of  hotchpot. 
The  doctrine  and  limits  of  representation  laid  down  in 
the  statute  of  distributions  seem  to  have  been  principally 
borrowed  from  the  civil  law,  whereby  it  will  sometimes 
happen  that  personal  estates  are  divided  per  capita^  and 
sometimes  per  stirpes*  whereas  the  common  law  knows  no 
other  rule  of  succession  but  that  ?)er  stirpes  only.  They 
are  divided  per  capita,  to  every  man  an  equal  share,  when 
all  the  claimants  claim  in  their  own  rights,  as  in  equal  de- 
gree of  kindred,  and  not  jure  repraesentationis,  in  the  right 
of  another  person.  As  if  the  next  of  kin  be  the  intestate's 
three  brothers,  A,  B,  and  C,  here  his  effects  are  divided  into 
three  equal  portions  and  distributed  per  capita  one  to  each; 
but  if  one  of  these  brothers,  A,  had  been  dead,  leaving  three 
children,  and  another,  B,  leaving  two,  then  the  distribution 
must  have  been  per  stirpes,  viz.  one  third  to  A's  three 
children,  another  third  to  B's  two  children,  and  the  remain- 
ing third  to  C,  the  surviving  brother.  Yet  if  C  had  also 
been  dead  without  issue,  then  A's  and  B's  five  children, 
being  all  in  equal  degree  to  the  intestate,  would  take  in  their 
own  rights  per  capita,  viz.  each  of  them  one  fifth  part.^ 

2.  Schouler  on  Wills  and  Adminis-  4.  By  trunk  or  root,  i.  e.,  by  right 
tration,  545;  Wms.  Exrs.,  1485,  1498.      of  representation. 

3.  Per  head.  5.  Consult  the  local  statutes. 


BOOK  THE  THIRD. 


OF  PRIVATE  WRONGS. 


CHAPTER  I. 

OF   THE   REDRESS   OF   PRIVATE   WRONGS   BY  THE   MERE   ACT   OF   THE 

PARTIES. 

A  wrong  is  a  privation  of  right.  [2]  Wrongs  are  divis- 
ible into  two  sorts  or  species:  private  wrongs  and  public 
wrongs.  The  former  are  an  infringement  or  privation  of 
the  private  or  civil  rights  belonging  to  individuals  consid- 
ered as  individuals,  and  are  thereupon  frequently  termed 
civil  injuries;  the  latter  are  a  breach  and  violation  of  public 
rights  and  duties  which  affect  the  whole  community  consid- 
ered as  a  community,,  and  are  distinguished  by  the  harsher 
appellation  of  crimes  and  misdemeanors. 

The  remedy  for  private  wrongs  is  principnlly  to  be  sought 
hy  application  to  the  courts  of  justice,  that  is,  by  civil  suit 
or  action.  [3]  But  as  there  are  certain  injuries  of  such  a 
nature  that  some  of  them  furnish  and  others  require  a  moro 
speedy  remedy  than  can  be  had  in  the  ordinary  forms  of 
justice,  there  is  allowed  in  those  cases  an  extrajudicial  or 
eccentrical  kind  of  remedy,  of  which  I  shall  first  of  all 
treat  before  I  consider  the  several  remedies  by  suit;  and 
to  that  end  shall  distribute  the  redress  of  private  wrongs 
into  three  several  species:  first,  that  which  is  obtained  by 
the  mere  act  of  the  parties  themselves;  secondly,  that  which 
is  effected  hy  the  mere  act  and  operation  of  laiv;  and  thirdly, 
that  which  arises  from  suit  or  action  in  courts,  which  con- 
sists in  a  conjunction  of  the  other  two,  the  act  of  the  par- 
ties co-operating  with  the  act  of  law. 

And  first,  of  that  redress  of  private  injuries  which  is 
obtained  by  the  mere  act  of  the  parties.    This  is  of  two 

[423] 


424  Redress  of  Private  Wrongs.  [Book  III. 

sorts:  first,  that  which  arises  from  the  act  of  the  injured 
party  only;  and  secondly,  that  which  arises  from  the  joint 
act  of  all  the  parties  together;  both  which  I  shall  consider 
in  their  order. 

Of  the  first  sort,  or  that  which  arises  from  the  sole  act  of 
the  injured  party,  is, 

I.  The  defence  of  one's  self,  or  the  mutual  and  reciprocal 
defense  of  such  as  stand  in  the  relations  of  husband  and 
wife,  parent  and  child,  master  and  servant.  In  these  cases^ 
if  the  party  himself,  or  any  of  these  his  relations,  be  forcibly 
attacked  in  his  person  or  property,  it  is  lawful  for  him  ta 
repel  force  by  force,  and  the  breach  of  the  peace  which 
happens  is  chargeable  upon  him  only  wiio  began  the  affray. 
In  the  English  law  self-defence  is  held  an  excuse  for 
breaches  of  the  peace,  nay,  even  for  homicide  itself;  but 
care  must  be  taken  that  the  resistance  does  not  exceed  the 
bounds  of  mere  defence  and  prevention,  for  then  the  de- 
fender would  himself  become  an  aggressor.^   [4] 

II.  Recaption,  or  reprisal,  is  another  species  of  remedy 
by  the  mere  act  of  the  party  injured.  This  happens  when 
any  one  hath  deprived  another  of  his  property  in  goods, 
or  chattels  personal,  or  w^rongfully  detains  one's  wife,  child,, 
or  servant;  in  which  case  the  owner  of  the  goods  and  the 
husband,  parent,  or  master  may  law^fully  claim  and  retake 
them  wherever  he  happens  to  find  them,  so  it  be  not  in  a 
riotous  manner  or  attended  with  a  breach  of  the  peace.^ 
If,  for  instance,  my  horse  is  taken  away,  and  I  find  him  in 
a  common,  a  fair,  or  a  public  inn,  I  may  lawfully  seize  him 
to  my  own  use ;  but  I  cannot  justify  breaking  open  a  private 
stable  or  entering  on  the  grounds  of  a  third  person  to  take 
him,  except  he  be  feloniously  stolen,  but  must  have  recourse 
to  an  action  at  law,   [5] 

III.  Thirdly,  a  remedy  of  the  same  kind  for  injuries  to 
real  property  is  by  entry  on  lands  and  tenements,  when 
another  person  without  any  right  has  taken  possession 
thereof.     This  depends  in  some  measure  on  like  reasons 

1.  Cooley  on  Torts  (Students'  Ed.),  2.  Cooley  on  Torts  (Students'  Ed.)> 

153-158     and    cases    cited;     Hale    on      112. 
Torts,   91    and   cases  cited. 


CiiAP.  I.]  Redress  of  Private  Wrongs.  425 

with  tlie  former;  and  like  that,  too,  must  be  peaceable  and 
without  force.^ 

IV.  The  abatement  or  removal  of  nuisances.  Whatso- 
ever unlawfully  annoys  or  doth  damage  to  another  is  a 
nuisance,  and  such  nuisance  maj^  be  abated,  that  is,  taken 
away  or  removed,  by  the  party  aggrieved  thereby,  so  as  he 
commits  no  riot  in  the  doing  of  it.^  If  a  house  or  wall  is 
erected  so  near  to  mine  that  it  stops  my  ancient  lights  [the 
doctrine  of  ancient  lights  has  not  been  adopted  in  this 
country] ,  which  is  a  private  nuisance,  I  may  enter  my  neigh- 
bor's  land  and  peaceably  pull  it  down.  Of  if  a  new  gate 
be  erected  across  the  public  highway,  which  is  a  common 
nuisance,  any  of  the  king's  subjects  passing  that  way  may 
<iut  it  down  and  destroy  it. 

V.  A  fifth  case  is  that  of  distraining  cattle  or  goods  for 
non-payment  of  rent  or  other  duties;  or  distraining  an- 
other's cattle  damage-feasant,  that  is,  doing  damage,  or 
trespassing,  upon  his  land.^  [6] 

1.  A  distress,  districtio,  is  the  taking  a  personal  chattel 
out  of  the  possession  of  the  wrongdoer  into  the  custody  of 
the  party  injured,  to  procure  a  satisfaction  for  the  wrong 
committed.  (1.)  The  most  usual  injury  for  which  a  dis- 
tress may  be  taken  is  that  of  non-payment  of  rent. 

(2.)  For  neglecting  to  do  suit  to  the  lord's  court,  or  other  certain  per- 
•Eonal  service  the  lord  may  distrain  of  common  right.  [7]  (3.)  For  amerce- 
ments in  a  court-lcet  a  distress  may  be  had  of  common  right,  but  not 
for  amercements  in  a  court-baron,  without  a  special  prescription  to 
warrant  it. 

3.  Cooley  on  Torts  (Students'  Ed.),  case  of  Simpson  v.  Hartopp,  Willes, 
119.  512;    1  Smith's  Lead.   Cases,   *526  et 

4.  If  it  is  a  private  nuisance,  he  seq.  and  notes;  1  Bouvier  Law  Diet, 
only  may  abate  it  who  is  injured  by  (11th  Ed.),  Distress,  pp.  433-437; 
its  continuance;  if  it  is  a  public  nui-  Cooley  on  Torts  (Students'  Ed.),  120; 
sance  he  only  may  abate  it  who  suf-  Taylor  on  Landlord  and  Tenant,  §§ 
fers   a   special   grievance   not   felt   by  556  et  seq.  and  notes. 

the     public    in    general.      Cooley    on  Distress    of    cattle    damage-feasant 

Torts   (Students'  Ed.),  108.  is  a  common  law  right,  regulated  by 

5.  See,  as  to  the  common  law  rules  statute  in  this  coimtry.  Cooley  on 
f.s   to   distress   for   rent,   the   leading  Torts   (Students'  Ed.),  119  and  cases 

cited. 


42 G  Redkess  of  Private  Wrojtgs.  [Book  TIT. 

(4.)  Another  injury  for  which  distresses  may  be  taken  is 
where  a  man  finds  beasts  of  a  stranger  wandering  in  his 
grounds  da  mage- feasant,  that  is,  doing  him  hurt  or  damage 
by  treading  down  his  grass  or  the  like,  in  which  case  the 
owner  of  the  soil  may  distrain  them  till  satisfaction  be  made 
him  for  the  injury  he  has  thereby  sustained.  (5.)  Lastly, 
for  several  duties  and  penalties  inflicted  by  special  acts  of 
parliament  (as  for  assessments  made  by  commissioners  of 
sewers  or  for  the  relief  of  the  poor)  remedy  by  distress  and 
sale  is  given. 

2.  As  to  the  things  which  may  be  distrained,  or  taken 
in  distress,  we  may  lay  it  down  as  a  general  rule  that  all 
chattels  personal  are  liable  to  be  distrained,  unless  particu- 
larly protected  or  exempted.  Instead,  therefore,  of  men- 
tioning what  things  are  distrainable,  it  will  be  easier  ta 
recount  those  which  are  not  so,  with  the  reason  of  their 
particular  exemptions.  And  (1.)  Such  things  wherein  no 
man  can  have  an  absolute  and  valuable  property  (as  dogs,, 
cats,  rabbits,  and  all  animals  ferae  naturae)  cannot  })e  dis- 
trained. [8]  Yet  if  deer  (which  are  ferae  naturae)^  are 
kept  in  a  private  inclosure  for  the  purpose  of  sale  or  profit, 
this  so  far  changes  their  nature,  by  reducing  them  to  a  kind 
of  stock  or  merchandise,  that  they  may  be  distrained  for 
rent.  (2.)  Whatever  is  in  the  personal  use  or  occupation 
of  any  man  is  for  the  time  privileged  and  protected  from 
any  distress,  as  an  axe  with  which  a  man  is  cutting  wood^ 
or  a  horse  while  a  man  is  riding  him.  But  horses  drawing 
a  cart  may  (cart  and  all)  be  distrained  for  rent-arrere;  and 
also,  if  a  horse,  though  a  man  be  riding  him,  be  taken 
damage-feasant^'  or  trespassing  in  another's  grounds,  the 
horse  (notwithstanding  his  rider)  may  be  distrained  and 
led  away  to  the  pound.  [3.]  Valuable  things  in  the  way 
of  trade  shall  not  be  liable  to  distress.  As  a  horse  standing 
in  a  smith's  shop  to  be  shoed,  or  in  a  common  inn;  or  cloth 
at  a  tailor's  house;  or  corn  sent  to  a  mill  or  a  market.  For 
all  these  are  protected  and  privileged  for  the  benefit  of 
trade,  and  are  supposed  in  common  presumption  not  to 
belong  to  the  owner  of  the  house,  but  to  his  customer. 

6.  Wild  by  nature.  7.  Doing  damage. 


Chap.  I.]  Redress  of  Pkivate  Wrongs.  427 

But,  generally  speaking,  whatever  goods  and  chattels  the 
landlord  finds  upon  the  premises,  whether  they  in  fact  be- 
long to  the  tenant  or  a  stranger,  are  distrainable  by  him 
for  rent.  With  regard  to  a  stranger's  beasts  which  are 
found  on  the  tenant's  land,  the  following  distinctions  are 
however  taken.  If  they  are  put  in  by  consent  of  the  owner 
of  the  beasts,  they  are  distrainable  immediately  afterwards 
for  rent-arrere  by  the  landlord.  So  also  if  the  stranger's 
cattle  break  the  fences,  and  commit  a  trespass  by  coming 
on  the  land,  they  are  distrainable  immediately  by  the  lessor 
for  his  tenant's  rent,  as  a  punishment  to  the  owner  of  the 
beasts  for  the  wrong  committed  through  his  negligence. 
But  if  the  lands  were  not  sufficiently  fenced  so  as  to  keep 
out  cattle,  the  landlord  cannot  distrain  them  till  they  have 
been  levant  and  couchant  (levantes  et  ciibantes)  on  the  land; 
that  is,  have  been  long  enough  there  to  have  lain  down  and 
rose  up  to  feed,  which  in  general  is  held  to  be  one  night  at 
least;  and  then  the  law  presumes  that  the  owner  may  have 
notice  whether  his  cattle  have  strayed,  and  it  is  his  own 
negligence  not  to  have  taken  them  away.  [9]  Yet,  if  the 
lessor  of  his  tenant  were  bound  to  repair  the  fences  and  did 
not,  and  thereby  the  cattle  escaped  into  their  grounds  with- 
out the  negligence  or  default  of  the  owner,  in  this  case, 
though  the  cattle  may  have  been  levant  and  couchant,  yet 
they  are  not  distrainable  for  rent  till  actual  notice  is  given 
to  the  owner  that  they  are  there  and  he  neglects  to  remove 
•them;  for  the  law  will  not  suffer  the  landlord  to  take  ad- 
vantage of  his  own  or  his  tenant's  wrong.  (4.)  There  are 
also  other  things  privileged  by  the  ancient  common  law,  as 
a  man's  tools  and  utensils  of  his  trade,  the  axe  of  a  carpen- 
ter, the  books  of  a  scholar,  and  the  like,  which  are  said 
to  be  privileged  for  the  sake  of  the  public,  because  the  tak- 
ing them  away  would  disable  the  owner  from  serving  the 
commonwealth  in  his  station.  So  beasts  of  the  plough, 
avei'ia  carucae,  and  sheep  are  privileged  from  distresses  at 
common  law;  while  dead  goods  or  other  sort  of  beasts, 
which  Bracton  calls  catalla  otiosa,  may  be  distrained.  But 
as  beasts  of  the  plough  may  be  taken  in  execution  for  debt, 
so  they  may  be  for  distress  by  statute,  which  partake  of 


42S  Redress  of  Private  Wrongs.  [Book  III. 

tlie  nature  of  executions.  (5.)  Nothing  shall  be  distrained 
for  rent  which  may  not  be  rendered  again  in  as  good  plight 
as  when  it  was  distrained;  for  which  reason  milk,  fruit, 
and  the  like  cannot  be  distrained,  a  distress  at  common  law 
being  only  in  the  nature  of  pledge  or  security,  to  be  restored 
in  the  same  plight  when  the  debt  is  paid.  [10]  So,  an- 
ciently, sheaves  or  shocks  of  corn  could  not  be  distrained, 
because  some  damage  must  needs  accrue  in  their  removal; 
but  a  cart  loaded  with  com  might,  as  that  could  be  safely 
restored.  But  now  by  statute  2  W.  &  M.  c.  5,  corn  in 
sheaves  or  cocks  or  loose  in  the  straw,  or  hay  in  barns  or 
ricks,  or  otherwise,  may  be  distrained  as  well  as  other 
chattels.  (6.)  Lastly,  things  fixed  to  the  freehold  may  not 
be  distrained;  and  caldrons,  windows,  doors,  and  chimney- 
I)ieces,  for  they  savor  of  the  realty.  For  this  reason,  also, 
corn  growing  could  not  be  distrained  till  the  statute  11  Geo. 
II.  c.  19,  empowered  landlords  to  distrain  corn,  grass,  or 
other  products  of  the  earth,  and  to  cut  and  gather  them 
when  ripe. 

3.  How  distresses  may  be  taken,  disposed  of,  or  avoided. 
Formerly,  distresses  were  looked  upon  in  no  other  light 
than  as  a  mere  pledge  or  security  for  payment  of  rent  or 
other  duties,  or  satisfaction  for  damage  done.  And  so  the 
law  still  continues  wdth  regard  to  distresses  of  beasts  taken 
damafic-fcamnt,  and  for  other  causes  not  altered  by  act  of 
parliament,  over  which  the  distrainor  has  no  other  power 
than  to  retain  them  till  satisfaction  is  made. 

In  pointing  out  the  methods  of  distraining,  I  shall  in 
general  suppose  the  distress  to  be  made  for  rent,  and  re- 
mark where  necessary  the  differences  between  such  distress 
and  one  taken  for  other  causes. 

In  the  first  place,  all  distresses  must  be  made  by  day, 
unless  in  the  case  of  damage-f easant, —  an  exception  being 
there  allowed  lest  the  bests  should  escape  before  they  are 
taken.  [11]  And  when  a  person  intends  to  make  a  distress 
he  must,  by  himself  or  his  bailiff,  enter  on  the  demised 
premises,  formerly  during  the  continuance  of  the  lease;  but 
now  [by  statute],  if  the  tenant  holds  over,  the  landlord  may 
distrain  within  six  months  after  the  determination  of  the 


Chap.  I.]  Redress  of  Private  Wrongs.  429 

lease,  provided  his  own  title  or  interest,  as  well  as  the 
tenant's  possession,  continue  at  the  time  of  the  distress. 
If  the  lessor  does  not  find  sufficient  distress  on  the  premises, 
formerly  he  could  resort  nowhere  else.  But  now  [by 
statute]  the  landlord  may  distrain  any  goods  of  his  tenant, 
carried  off  the  premises  clandestinely,  wherever  he  finds 
them  within  thirty  days  after,  unless  they  have  been  hofia 
fide  sold  for  valuable  consideration.  The  landlord  may 
also  distrain  the  beasts  of  his  tenant,  feeding  upon  any 
commons  or  wastes,  appendant  or  appurtenant  to  the  de- 
mised premises.  The  landlord  might  not  formerly  break 
open  a  house  to  make  a  distress,  for  that  is  a  breach  of  the  ^ 
peace.  But  when  he  was  in  the  house,  it  was  held  that  ho 
might  break  open  an  inner  door;  and  now  [by  statute]  he 
may,  by  the  assistance  of  the  peace-officer  of  the  parish, 
break  open  in  the  daytime  any  place  whither  the  goods  have 
been  fraudulently  removed  and  locked  up  to  prevent  a  dis- 
tress, oath  being  first  made,  in  case  it  be  a  dwelling-house, 
of  a  reasonable  ground  to  suspect  that  such  goods  are  con- 
cealed therein. 

Where  a  man  is  entitled  to  distrain  for  an  entire  duty,  he 
ought  to  distrain  for  the  whole  at  once,  and  not  for  part  at 
one  time  and  part  at  anotlier.  But  if  he  distrains  for  the 
whole  and  there  is  not  sufficient  on  the  premises,  or  he  hap- 
pens to  mistake  in  the  value  of  the  thing  distrained,  and 
so  takes  an  insufficient  distress,  he  may  take  a  second  dis- 
tress to  complete  his  remedy.   [12] 

Distresses  must  be  proportioned  to  the  thing  distrained 
for.  By  the  statute  of  Marlbridge,  52  Hen.  III.  c.  4,  if  any 
man  takes  a  great  or  unreasonable  distress  for  rent-arrere, 
he  shall  be  heavily  amerced  for  the  same.  As  if  the  land- 
lord distrains  two  oxen  for  twelve-pence  rent,  the  taking  of 
hoth  is  an  unreasonable  distress;  but  If  there  w^ere  no  other 
distress  nearer  the  value  to  be  found,  he  might  reasonably 
have  distrained  one  of  them;  but  for  homage,  fealty,  or 
suit  and  service,  as  also  for  parliamentary  wages,  it  is  said 
that  no  distress  can  be  excessive.  For  as  these  distresses 
cannot  be  sold,  the  owner  upon  making  satisfaction  may 
have  his  chattels  again.     The  remedy  for  excessive  dis- 


430  Redress  of  Private  Wrongs.  [Book  III. 

tresses  is  by  a  special  action  on  the  statute  of  Marlbridge, 
for  an  action  of  trespass  is  not  maintainable  upon  this  ac- 
count, it  being  no  injury  at  the  common  law. 

AVhen  the  distress  is  thus  taken,  the  next  consideration 
is'  the  disposal  of  it.  For  which  purpose  the  things  dis- 
trained must  in  the  first  place  be  carried  to  some  pound,  and 
there  impounded  by  the  taker.  But  in  their  way  thither 
they  may  be  rescued  by  the  owner,  in  case  the  distress  was 
taken  without  cause,  or  contrary  to  law,  as  if  no  rent  be  due ; 
if  they  were  taken  upon  the  highway,  or  the  like:  in  these 
cases  the  tenant  may  lawfully  make  rescue.  But  if  they  be 
once  impounded,  even  though  taken  without  any  cause,  the 
owner  may  not  break  the  pound  and  take  them  out,  for 
they  are  then  in  the  custody  of  the  law. 

A  pound  {parens y  which  signifies  any  inclosure)  is  either 
'pound-oiert,  that  is  open  overhead,  or  pound-coi'er^^  that 
is  close.  By  the  statute  1  &  2  P.  &  M.  c.  12,  no  distress  of 
cattle  can  be  driven  out  of  the  hundred  where  it  is  taken, 
unless  to  a  pound-overt  within  the  same  shire,  and  within 
three  miles  of  the  place  where  it  was  taken.  [13]  This 
is  for  the  benefit  of  the  tenants,  that  they  may  know  where 
to  find  and  replevy  the  distress.  And  by  statute  11  Geo.  II. 
c.  19,  which  was  made  for  the  benefit  of  landlords,  any  per- 
son distraining  for  rent  may  turn  any  part  of  the  premises 
upon  which  a  distress  is  taken  into  a  pound,  pt'o  Imc  vice, 
for  securing  of  such  distress.  If  a  live  distress,  of  animals, 
be  impounded  in  a  common  pound-overt,  the  owner  must 
take  notice  of  it  at  his  peril;  but  if  in  any  special  pound- 
overt,  so  constituted  for  this  particular  purpose,  the  dis- 
trainor must  give  notice  to  the  owner;  and  in  both  these 
cases  the  owner,  and  not  the  distrainor,  is  bound  to  pro- 
vide the  beasts  with  food  and  necessaries.  But  if  they  are 
put  in  a  pound-covert,  in  a  stable,  or  the  like,  the  landlord 
or  distrainor  must  feed  and  sustain  them.  A  distress  of 
household  goods  or  other  dead  chattels  which  are  liable 
to  be  stolen  or  damaged  by  weather,  ought  to  be  impounded 
in  a  pound-covert,  else  the  distrainor  must  answer  for  the 
consequences. 

When  impounded  the  goods  were  formerly  only  in  the 


Chap.  I.]  Eedress  of  Private  Wrongs.  43 1 

nature  of  a  pledge  or  security  to  compel  the  performance 
of  satisfaction,  and  upon  this  account  it  hath  been  held 
that  the  distrainor  is  not  at  liberty  to  work  or  use  a  dis- 
trained beast.  And  thus  the  law  still  continues  with  regard 
to  beasts  taken  damage-feasant,  and  distresses  for  suit  or 
services  which  must  remain  impounded  till  the  owner  makes 
satisfaction  or  contests  the  right  of  distraining  by  replevy- 
ing the  chattels.  To  replevy^  {replegiare,  that  is,  to  take 
back  the  pledge)  is  when  a  person  distrained  upon  applies 
to  the  sheriff  or  his  officers,  and  has  the  distress  returned 
into  his  own  possession  upon  giving  good  security  to  try 
the  right  of  taking  it  in  a  suit  of  law,  and,  if  that  be  deter- 
mined against  him,  to  return  the  cattle  or  goods  once  more 
into  the  hands  of  the  distrainor. 

This  kind  of  distress,  though  it  puts  the  owner  to  incon- 
venience, and  is  therefore  a  punishment  to  him,  yet,  if  he 
continues  obstinate  and  will  make  no  satisfaction  or  pay- 
ment, it  is  no  remedy  at  all  to  the  distrainor.  [14]  But 
for  a  debt  due  to  the  crown,  unless  paid  within  forty  days, 
the  distress  was  always  salable  at  common  law.  And  for 
an  amercement  imposed  at  a  court-leet  the  lord  may  also 
sell  the  distress;  partly  because,1being  the  king's  court  of 
record,  its  process  partakes  of  the  royal  prerogative,  but 
principally  because  it  is  in  the  nature  of  an  execution  to 
levy  a  legal  debt.  And  so,  in  the  several  statute-distresses 
before  mentioned,  which  are  also  in  the  nature  of  execu- 
tions, the  power  of  sale  is  likewise  usually  given  to  effectu- 
ate and  complete  the  remedy.  And  in  like  manner,  by  sev- 
eral acts  of  parliament,  in  all  cases  of  distress  for  rent,  if 
the  tenant  or  owner  do  not,  within  five  days  after  the  dis- 
tress is  taken,  and  notice  of  the  cause  thereof  given  him, 
replevy  the  same  with  sufficient  security,  the  distrainor, 
with  the  sheriff  or  constable,  shall  cause  the  same  to  be 
appraised  by  two  sworn  appraisers,  and  sell  the  same 
towards  satisfaction  of  the  rent  and  charges,  rendering  the 
overplus,  if  any,  to  the  owner  himself. 

The  many  particulars  which  attend  the  taking  of  a  dis- 
tress used  formerly  to  make  it  a  hazardous  kind  of  pro- 

8.  See  action  of  replevin,  post. 


432  Redress  of  Private  Wrongs.  [Ijook  III. 

ceeding;  for  if  any  one  irregularity  was  committed  it  viti- 
ated the  whole,  and  made  the  distrainors  trespassers  ab 
initio.'*  [15]  But  now,  by  the  statute  11  Geo.  II.  c.  19, 
it  is  provided,  that  for  any  unlawful  act  done  the  whole 
shall  not  be  unlawful  or  the  parties  trespassers  ab  initio, 
but  that  the  party  grieved  shall  only  have  an  action  for  the 
real  damage  sustained,  and  not  even  that  if  tender  of 
amends  is  made  before  any  action  is  brought. 

VI.  The  seizing  of  heriots,  when  due  on  the  death  of  a  tenant,  is  also 
another  species  of  self-remedy,  not  much  unlike  that  of  taking  cattle  or 
goods  in  distress.  As  for  that  division  of  heriots  which  is  called  heriot- 
service,  and  is  only  a  species  of  rent,  the  lord  may  distrain  for  this  as 
well  as  seize;  but  for  heriot-custom  (which  Sir  Edward  Coke  says  lies 
only  in  prender,  and  not  in  render)  the  lord  may  seize  the  identical  thing 
itself,  but  cannot  distrain  any  other  chattel  for  it.  The  like  speedy  and 
effectual  remedy  of  seizing  is  given  with  regard  to  many  things  that  are 
said  to  lie  in  franchise,  as  waifs,  wrecks,  estrajs,  deodands,  and  the  like, 
ail  which  the  person  entitled  thereto  may  seize  without  the  formal  pro- 
cess of  a  suit  or  action. 

I  shall  next  briefly  mention  such  remedies  as  arise  from 
the  joint  act  of  all  the  parties  together. 

I.  Accord  is  a  satisfaction  agreed  upon  between  the  party 
injuring  and  the  party  injured,  which,  when  performed,  is 
a  bar  of  all  actions  upon  this  account.^ 

II.  Arbitration  is  where  the  parties,  injuring  and  injured, 
submit  all  matters  in  dispute  concerning  any  personal  chat- 
tels or  personal  wrong  to  the  judgment  of  two  or  more  arbi- 
trators, who  are  to  decide  the  controversy;  and  if  they 
do  not  agree  it  is  usual  to  add  that  another  person  be  called 
in  as  umpire  {impcrator  or  impar),  to  whose  sole  judgment 
it  is  then  referred;  or  frequently  there  is  only  one  arbitra- 

9.  This   is  the  rule  in   the  leading  A      mere     nonfeasance      does      not 

case   known    as   the    Six    Carpenters'  amount  to  such  an  abuse  as  renders 

Case,  viz.,   that   if  a  man   abuses   an  a   man   a   trespasser   ab   initio.     lb. ; 

authority   given   him   by   law,   he   be-  see,  also,  Cooley  on  Torts    (Students' 

comes    a   trespasser    ah    initio,    i.    e.,  Ed.),  331;  Hale  on  Torts,  391. 

from     the    beginning,     though     it    is  1.  See  the  leading  case  of  Cumber 

otherwise   of    an    authority    given   by  v.  Wane,   1    Strange,  426;    1   Smith's 

the  party.     The  Six  Carpenters'  Case,  Lead.    Cases,    *439    and    notes,   where 

8  Coke,   146;'  1  Smith's  Lead.  Cas  s,  the  subject  is  fully  considered. 
•216. 


CiiAr.  I.]  Eedress  of  Private  Wrongs.  433 

tor  originally  appointed.  This  decision  in  any  of  these 
cases  is  called  an  award.  And  thereby  the  question  is  as 
fully  determined,  and  the  right  transferred  or  settled,  as  it 
could  have  been  by  the  agreement  of  the  parties  or  the 
judgment  of  a  court  of  justice.  But  the  right  of  real  prop- 
erty cannot  thus  pass  by  a  mere  award,  which  subtilty  in 
point  of  form  (for  it  is  now  reduced  to  nothing  else)  had 
its  rise  from  feodal  principles;  for  if  this  had  been  per- 
mitted the  land  might  have  been  aliened  collusively  with- 
out the  consent  of  the  superior.  Yet  doubtless  an  arbitra- 
tor may  now  award  a  conveyance  or  a  release  of  land,  and  it 
will  be  a  breach  of  the  arbitration-bond  to  refuse  com- 
pliance. For  though  originally  the  submission  to  arbitra- 
tion used  to  be  by  word  or  by  deed,  yet  both  of  these,  being 
revocable  in  their  nature,  it  is  now  become  the  practice  to 
enter  into  mutual  bonds  with  condition  to  stand  to  the 
award  or  arbitration  of  the  arbitrators  or  umpire  therein 
named.  The  legislature  has  now  established  the  use  of 
arbitrations,  as  well  in  controversies  where  causes  are  de- 
pending as  in  those  where  no  action  is  brought,  enacting,  by 
statute  9  &  10  W.  III.-  c.  15,  that  all  merchants  and  others 
who  desire  to  end  any  controversy,  suit,  or  quarrel  (for 
which  there  is  no  other  remedy  but  by  personal  action  or 
suit  in  equity),  may  agree  that  their  submission  of  the  suit 
to  arbitration  or  umpirage  shall  be  made  a  rule  of  any  of 
the  king's  courts  of  record,^  and  may  insert  such  agreement 
in  their  submission  or  promise,  or  condition  of  the  arbitra- 
tion-bond; which  agreement  being  proved  upon  oath  by  one 
of  the  witnesses  thereto,  the  court  shall  make  a  rule  that 
such  submission  and  ward  shall  be  conclusive.  And  after 
such  rule  made,  the  parties  disobeying  the  award  shall  be 
liable  to  be  punished  as  for  a  contempt  of  the  court,  unless 
such  award  shall  be  set  aside  for  corruption  or  other  mis- 
behavior in  the  arbitrators  or  umpire,  proved  on  oath  to 
the  court  within  one  term  after  the  award  is  made. 

2.  Similar  statutes  are  to  be  found  eludes    both    suits    pending   and    also 

probably  in  all   the  states,  including  matters    not    in    suit.      See   111.    Rev. 

causes   of   action   both   real   and   per-  Stat.,  ch.  10,  sees.  1  and  16. 
Bonal.      In    Illinois,    the    statute    in- 

.  28 


434  Redress  by  Law.  [Book  III. 

•  CHAPTER  II. 

OF  REDRESS  BY  THE  MERE  OPERATION'  OF  LAW. 

The  remedies  for  private  wrongs  which  are  effected  by 
the  mere  operation  of  the  law  will  fall  within  a  very  narrow 
compass,  there  being  only  two  instances  of  this  sort  that  at 
present  occur  to  my  recollection;  the  one  that  of  retainer, 
where  a  creditor  is  made  executor  or  administrator  to  his 
debtor;  the  other,  in  the  case  of  what  the  law  calls  a  re- 
mitter. [18] 

I.  If  a  person  indebted  to  another  makes  his  creditor  or 
debtee  his  executor,  or  if  such  a  creditor  obtains  letters  of 
administration  to  his  debtor,  in  these  cases  the  law  gives 
him  a  remedy  for  his  debt  by  allowing  him  to  retain  so  much 
as  will  pay  himself  before  any  other  creditors  whose  debts 
are  of  equal  degree.^  But  the  executor  shall  not  retain  his 
own  debt  in  prejudice  to  those  of  a  higher  degree.  Neither 
shall  one  executor  be  allowed  to  retain  his  own  debt  in 
prejudice  to  that  of  his  co-executor  in  equal  degree,  but 
both  shall  be  discharged  in  proportion.  Nor  shall  an  ex- 
ecutor of  his  own  wrong  be  in  any  case  permitted  to  retain, 

II.  Remitter  is  where  he  who  hath  the  true  property  or 
jus  proprietatis  in  lands,  but  is  out  of  possession  thereof, 
and  hath  no  right  to  enter  without  recovering  possession 
in  an  action,  hath  afterwards  the  freehold  cast  upon  him 
by  some  subsequent  and,  of  course,  defective  title:  in  this 
case  he  is  remitted  or  sent  back  by  operation  of  law  to  his 
ancient  and  more  certain  title.^ 

1.  This  is  the  rule  of  the  common  United  States  it  is,  as  a  rule,  other- 
law,  but  in  the  United  States,  except  wise.  Schouler  on  Wills  and  Admin., 
in  a  few  states,  all  creditors  of  equal  412  and  note. 

rank  share  alike.     Schouler  on  Wills  2.  See,  generally,  18  Vin.  Abr.  tit. 

and  Admin.,   509   and  note.  Remitter;  Co.  Litt.,  347  note.    Where 

By  the  common  law,  also,  the  ap-  the  right  is  barred  by  the  Statute  of 

pointment  of  one's  debtor  to  be  exec-  Limitations  there  can  be  no  remitter, 

ntor  of  tlie  will  was  held  to  extinguish  Daniel  v.  Woodroff,  10  M.  &  W.  603; 

the   debt,   tliough   this   favor   did   not  15  id.  769;  2  H.  L.  Cas.  811. 
extend  to  an  administrator,  but  in  the 


Chap.  II.]  Redress  by  Law.  435 

As  if  A  disseizes  B,  that  is,  turns  him  out  of  possession,  and  dies,  leav- 
ing a  son,  C,  hereby  the  es'tate  descends  to  C,  the  son  of  A,  and  B  is 
barred  from  entering  thereon  till  he  proves  his  right  In  an  action.  Now 
if  afterwards  C,  the  heir  of  the  disseizor,  makes  a  lease  for  life  to  D, 
with  remainder  to  B,  the  disseizee,  for  life,  and  D  dies,  hereby  the  re- 
mainder accrues  to  B,  the  disseizee,  who  thus  gaining  a  new  freehold  by 
virtue  of  the  remainder,  which  is  a  bad  title,  is  by  act  of  law  remitted, 
or  in  of  his  former  and  surer  estate.  [20]  For  he  hath  hereby  gained  a 
new  right  of  possession,  to  which  the  law  immediately  annexes  his  an- 
cient right  of  property. 

If  the  subsequent  estate,  or  right  of  possession,  be  gained  by  a  man's 
own  act  or  consent,  as  by  immediate  purchase,  being  of  full  age,  ha 
shall  not  be  remitted,  for  the  taking  such  subsequent  estate  was  his  own 
folly,  and  shall  be  looked  upon  as  a  waiver  of  his  prior  right.  Therefore 
it  is  to  be  observed  that  to  every  remitter  there  are  regularly  these  in- 
cidents: an  ancient  right,  and  a  new  defeasible  estate  of  freehold  uniting 
in  one  and  the  same  person,  which  defeasible  estate  must  be  cast  upon 
the  tenant,  not  gained  by  his  own  act  or  folly.  But  there  shall  be  no  re- 
mitter to  a  right  for  which  the  p^arty  has  no  remedy  by  action.  [21] 


43G  Or  Courts  in  General.  [Book  III. 

CHAPTER  III. 

OF  COURTS  IN  GENERAL. 

The  next  and  principal  object  of  onr  inquiries  is  the  re- 
dress of  injuries  by  suit  in  courts,  wherein  the  act  of  the  par- 
ties and  the  act  of  law  co-operate.   [22] 

And  here,  although  in  the  several  cases  of  redress  by  the 
act  of  the  parties  mentioned  in  a  former  chapter,  the  law 
allows  an  extrajudicial  remedy,  yet  that  does  not  exclude 
the  ordinary  course  of  justice,  but  it  is  only  an  additional 
weapon  put  into  the  hands  of  certain  persons  in  particular 
instances.  Therefore,  though  I  may  defend  myself  or  rela- 
tions from  external  violence,  I  yet  am  afterwards  entitled 
to  an  action  of  assault  and  battery;  though  I  may  retake 
my  goods,  if  I  have  a  fair  and  peaceable  opportunity,  this 
power  of  recaption  does  not  debar  me  from  my  action  of 
trover  or  detinue,  &:c. 

But  as  to  remedies  by  the  mere  operation  of  law,  those 
are  indeed  given,  because  no  remedy  can  be  ministered  by 
suit  or  action  without  running  into  the  palpable  absurdity 
of  a  man's  bringing  an  action  against  himself,  the  two  cases 
Avherein  they  happen  being  such  wherein  the  only  possible 
legal  remedy  would  be  directed  against  the  very  person 
himself  who  seeks  relief.   [23] 

In  all  other  cases  it  is  a  general  and  indisputable  rule, 
that  where  there  is  a  legal  right  there  is  also  a  legal  remedy 
by  suit  or  action  at  law,  whenever  that  right  is  invaded.' 

First,  then,  of  courts  of  justice.  A  court  is  defined  to  be 
a  place  wherein  justice  is  judicially  administered.^ 

Courts  arc  either  courts  of  record  or  )iot  of  record.  A 
court  of  record  is  that  where  the  acts  and  judicial  proceed- 
ings are  enrolled  in  parchment  for  a  perpetual  memorial 
and  testimony,  which  rolls  are  called  the  records  of  the 

1.  Eviry    injury    imports    a    dam-  Ld.  Raym.  938;  1  Smith's  Lead  Cases, 

age;   and  wherever  there  lias  been  ai^  *342  ct  seq.;  Broom's  Leg.  Max..  "180. 

invasion  of  a  legal  right  the  law  gives  2.  A  court  is  a  tribunal  established 

a  remtdy  by  action.     This  is  the  rule  by  law  for  the  administration  of  jus- 

in  the  great  case  of  Ashby  v.  White,  tice  according  to  law. 


CirAP.  III.]  Of  Courts  ix  Gexekal.  437 

court,  and  are  of  such  high  and  supereminent  authority 
that  their  truth  is  not  to  be  called  in  question.  [24]  For 
it  is  a  settled  rule  and  maxim  that  nothing  shall  be  averred 
against  a  record,  nor  shall  any  plea,  or  even  proof,  be  ad- 
mitted to  the  contrary.^  And  if  the  existence  of  a  record 
be  denied,  it  shall  be  tried  by  nothing  but  itself,  that  is, 
upon  bare  inspection  whether  there  be  any  such  record 
or  no,  else  there  would  be  no  end  of  disputes.  But  if  there 
appear  any  mistake  of  the  clerk  in  making  up  such  record, 
the  court  will  direct  him  to  amend  it.  All  courts  of  record 
are  the  king's  courts,  in  right  of  his  crown  and  royal  dig- 
nity, and  therefore  no  other  court  hath  authority  to  fine 
or  imprison,  so  that  the  very  erection  of  a  new  jurisdiction 
with  the  power  of  fine  or  imprisonment  makes  it  instantly 
a  court  of  record.  [25]  A  court  not  of  record  is  the  court 
of  a  private  man  [not  so  in  the  United  States],  whom  the 
law  will  not  intrust  with  any  discretionary  power  over  the 
fortune  or  liberty  of  his  fellow-subjects.  Such  are  the 
courts-baron  incident  to  every  manor  and  other  inferior 
jurisdictions  where  the  proceedings  are  not  enrolled  or  re- 
corded; but  as  well  their  existence  as  the  truth  of  the  mat- 
ters therein  contained  shall,  if  disjjuted,  be  tried  and  deter- 
mined by  a  jury.  These  courts  can  hold  no  plea  of  matters 
cognizable  by  the  common  law  unless  under  the  value  of 
40s.,  nor  of  any  forcible  injury  whatsoever,  not  having  any 
process  to  arrest  the  person  of  the  defendant."* 

In  every  court  there  must  be  at  least  three  constituent 
parts,  the  actor,  reus,  and  judex:  the  actor,  or  plaintiff,  who 
complains  of  an  injury  done;  the  reus,  or  defendant,  who 
is  called  upon  to  make  satisfaction  for  it;  and  the  judex, 

3.  Where  a  court  of  general  juris-  contrary  appears.    On  the  other  hand, 

diction  has  jurisdiction  of  the  parties  no  such  intendment  is  made  in  favor 

and  of  the  subject-matter,  tlie  above-  of  the  judgment  of  a  court  of  limited 

stated  rule,  in   the  absence  of  fraud,  jurisdiction,     but     jurisdiction    must 

will  always  apply.  See  Cooley's  Const.  affirmatively    appear    on    the    face    of 

Lim.    (7th   Ed.),  40,  585  and   notes;  the      minutes     of     the      proceedings, 

and  in  superior  courts  of  record  pro-  Cooley's   Const.  Lim.    (7th   Ed.),   585 

cepding  according  to  the  course  of  the  and  cases  cited. 

common  law  and  not  exercising  some  4.  The  most  common  court  not   of 

special  or  limited  jurisdiction,  juris-  record  in  the  United  States  is  that  of 

diction   will   be   presimied   unless   the  justices  of  the  peace. 


438  Of  Courts  in  General.  [Book  III. 

or  judicial  power,  which  is  to  examine  the  truth  of  the 
fact,  to  determine  the  law  arising  upon  that  fact,  and  if 
any  injury  appears  to  have  been  done,  to  ascertain,  and  bj'^ 
its  officers  to  apply  the  remedy.  It  is  also  usual  in  the 
superior  courts  to  have  attorneys  and  advocates,  or  counsel, 
as  assistants. 

An  attorney  at  law  is  one  who  is  put  in  the  place,  stead, 
or  turn  of  another  to  manage  his  matters  of  law.  For- 
merly every  suitor  was  obliged  to  appear  in  person  to  pros- 
ecute or  defend  his  suit, —  according  to  the  old  Gothic  con- 
stitution,—  unless  by  special  license  under  the  king's  letters 
patent.  This  is  still  the  law  in  criminal  cases."^  And  an 
idiot  cannot  to  this  day  appear  by  attorney,  but  in  person, 
for  he  hath  not  discretion  to  enable  him  to  appoint  a  proper 
substitute;  and  upon  his  being  brought  before  the  court  in 
so  defenceless  a  condition,  the  judges  are  bound  to  take 
care  of  his  'interests,  and  they  shall  admit  the  best  plea 
in  his  behalf  that  any  one  present  can  suggest.  [26]  But 
with  us,  upon  the  principle  of  convenience,  it  is  now  per- 
mitted in  general,  by  divers  ancient  statutes,  whereof  tlie 
first  is  statute  Westm.  3,  c.  10,  that  attorneys  may  be  made 
to  prosecute  or  defend  any  action  in  the  absence  of  the 
parties  to  the  suit.  These  attorneys  are  now  formed  into  a 
regular  corps;  they  are  admitted  to  the  execution  of  their 
office  by  the  superior  courts  of  Westminster  Hall,  and  are 
in  all  points  officers  of  the  respective  courts  of  which  they 
are  admitted,  and  as  they  have  many  privileges  on  account 
of  their  attendance  there,  so  they  are  peculiarly  subject  to 
the  censure  and  animadversion  of  the  judges.  No  man  can 
practice  as  an  attorney  in  any  of  those  courts  but  such  as 
is  admitted  and  sworn  an  attorney  of  that  particular  court; 
an  attorney  of  the  Court  of  King's  Bench  cannot  practise 
in  the  Court  of  Common  Pleas,  nor  vice  versa.  [Serjeants  no 
longer  monopolize  the  practice  of  the  Common  Pleas.]  To 
practise  in  the  Court  of  Chancery  it  is  also  necessary  to  be 
admitted    a   solicitor   therein.     So    early    as    the    statute 

5.  Parties  may  now  always  appear  , 

by   attorney   except   in  certain   dilla- 
tory  pleas  considered  later  on. 


Chap.  III.]  Of  Courts  ix  General.  439 

4  Henry  IV.  c.  18,  it  was  enacted  that  attorneys  should  be 
examined  by  the  judges,  and  none  admitted  but  such  as 
were  virtuous,  learned,  and  sworn  to  do  their  duty.  And 
many  subsequent  statutes  have  laid  them  under  farther 
regulations. 

Of  advocates  or,  as  we  generally  call  them,  counsel,  there 
are  two  species  or  degrees,  barristers  and  Serjeants.  Tlie 
former  are  admitted  after  a  considerable  period  of  study, 
or  at  least  standing,  in  the  inns  of  court,  and  are  in  our  old 
books  styled  apprentices,  apprcnticii  ad  legem,^  being 
looked  upon  as  merely  learners  and  not  qualified  to  execute 
the  full  office  of  an  advocate  till  they  were  sixteen  years 
standing,  at  which  time,  according  to  Fortescue,  they  might 
be  called  to  the  state  and  degree  of  Serjeants,  or  servientcs 
ad  legemJ  [27]  Serjeants  at  law  are  bound  by  a  solemn 
oath  to  do  their  duty  to  their  clients;  and  that  by  custom 
the  judges  of  the  courts  of  Westminster  are  always  admit- 
ted into  this  venerable  order  before  they  are  advanced  to 
the  bench.  From  both  these  degrees  some  are  usually 
selected  to  be  his  majesty's  counsel  learned  in  the  law,  the 
two  principal  of  whom  are  called  his  attorney  and  solicitor- 
general.  They  must  not  be  employed  in  any  cause  against 
the  crown  without  special  license.  A  custom  has  of  late 
years  prevailed  of  granting  letters  patent  of  precedence  to 
such  barrister  as  the  crown  thinks  proper  to  honor  with 
that  mark  of  distinction,  whereby  they  are  entitled  to  such 
rank  and  pre-audience  as  are  assigned  in  their  respective 
patents;  sometimes  next  after  the  king's  attorney-general, 
but  usually  next  after  his  majesty's  counsel  then  being. 
These,  as  well  as  the  queen's  attorney  and  solicitor-general, 
rank  promiscuously  with  the  king's  counsel,  and  together 
with  them  sit  within  the  bar  of  the  respective  courts,  but 
receive  no  salaries,  and  are  not  sworn,  and  therefore  are  at 
liberty  to  be  retained  in  causes  against  the  crown.  And 
all  other  Serjeants  and  barristers  indiscriminateh',  except  in 
the  Court  of  Common  Pleas,  where  only  Serjeants  are  ad- 
mitted, may  take  upon  them  the  protection  and  defence 

6.  Apprentices  at  law.  The  degree  of  sergeant  has  been  abol- 

7.  Servants    (or  sergeants)    at  law.      ished. 


440  '  Of  Courts  in  General.  [Book  III. 

of  any  suitors,  whether  plaintiff  or  defendant,  who  are 
therefore  called  their  clients,  like  the  dependants  upon  the 
ancient  Roman  orators.  Those,  indeed,  practised  gratis,  for 
honor  merely,  or  at  most  for  the  sake  of  gaining  influence; 
and  so  likewise  it  is  established  with  us  that  a  counsel  can 
maintain  no  action  for  his  fees,^  which  are  given,  not  as 
locatio  uel  conduction  but  as  quiddam  honorarhim ;  not  as  a 
Lalary  or  hire,  but  as  a  mere  gratuity,  which  a  counsellor 
cannot  demand  without  doing  wrong  to  his  reputation. 
And  in  order  to  encourage  due  freedom  of  speech  in  the 
lawful  defence  of  their  clients,  and  at  the  same  time  to  give 
a  check  to  the  unseemly  licentiousness  of  prostitute  and 
illiberal  men,  it  hath  been  holden  that  a  counsel  is  not 
answerable  for  any  matter  by  him  spoken  relative  to  the 
cause  in  hand  and  suggested  in  his  client's  instructions, 
although  it  should  reflect  upon  the  reputation  of  another, 
and  even  prove  absolutely  groundless;  but  if  he  mentions 
an  untruth  of  his  own  invention,  or  even  upon  instructions 
if.it  be  impertinent  to  the  cause  in  hand,  he  is  then  liable 
to  an  action  from  the  party  injured.^  And  counsel  guilty 
of  deceit  or  collusion  are  punishable  by  the  statute  Westm. 
I.  3  Edw.  I.  c.  28,  with  imprisonment  for  a  year  and  a  day, 
and  perpetual  silence  in  the  courts, —  a  punishment  still 
sometimes  inflicted  for  gross  misdemeanors  in  practice.^ 

8.  Otherwise  in  the  United  States,  631  and  notes.  See,  generally,  as  to 
where  attorneys  at  law  may  maintain  attorneys  at  law,  Thornton  on  Attor- 
actions  for  their  fees.  The  distinction  neys  (1914),  2  vols.;  Weeks  on  At- 
b.tween  attorneys  and  barristers  at  torneys  (2d  Ed.),  1892;  2  Broom  & 
law    prevails   in   Canada,   but   not   in  Hadley's  Com.,  *22  et  seq. 

the  federal  and  state  jurisdictions,  ex-  1.  As  to  the  liability  of  attorneys 

cept  in  New  Jersey.  for   neglig^^nce,    see    Cooley   on   Torts 

9.  Cooley's  Const.  Lim.    (7th  Ed.),      (Students'  Ed.),  670. 


Chap.  IV.] 


CouKTS  OF  Common  Law. 


441 


CHAPTER  IV. 

OF  THE  PUBLIC  COURTS  OF  COMMON  LAW  AT^D  EQUITY.' 

Courts  of  justice  in  this  kingdom  are  either  such  as  are 
of  public  and  general  jurisdiction  throughout  the  whole 
realm,  or  such  as  are  only  of  a  private  and  special  juris- 
diction in  some  particular  parts  of  it.  [30]  Of  the  former 
there  are  four  sorts:  the  universally  established  courts  of 
common  law  and  equity,  the  ecclesiastical  courts,  the  courts 
military,  and  courts  maritime. 

And,  first,  of  such  public  courts  as  are  courts  of  common 
law  and  equity. 


I.  The  lowest,  and  at  the  same  time  the  most  expeditious,  court  of 
justice  known  to  the  law  of  England  is  the  court  of  piepoudre  {curia 
pedis  pulverizati)2  go  called  from  the  dusty  feet  of  the  suitors,  or,  accord- 
ing to  Sir  Edward  Coke,  because  justice  is  there  done  as  speedily  as 


1.  A  most  radical  change  has  been 
made  in  the  English  system  of  courts 
by  the  Supreme  Court  of  Judicature 
Act  of  1873  and  1875,  to  which  the 
student  is  referred  for  particulars. 
Without  going  into  details  it  may  be 
here  stated  that  nearly  all  the  then 
existing  courts  were  consolidated  into 
one  great  court  called  "  The  Supreme 
Court  of  Judicature,"  consisting  of 
two  divisions,  one  a  court  of  original 
jurisdiction  (the  High  Court  of  Jus- 
tice), and  one  of  appellate  jurisdic- 
tion ("Her  Majesty's  Court  of  Ap- 
peal"). The  House  of  Lords  still 
holds  its  final  appellate  jurisdiction. 
The  High  Court  of  Justice  consisted 
originally  of  five  divisions  called  re- 
spectively the  Queen's  Bench,  Common 
Pleas,  Exchequer,  Chancery  and  Pro- 
bate, Divorce  and  Admiralty  Divi- 
sions, which,  in  substance,  succeeded 
the  courts  of  corresponding  name.  The 
three  common  law  divisions  were  later 


in  1881  united  into  the  Queen's  Bench 
Division.  One  rule  of  great  import- 
ance was  established,  viz.,  that  except 
as  to  probate,  divorce  and  admiralty 
cases  which  must  be  brought  in  the 
division  of  that  name,  the  classifica- 
tion of  cases  indicated  by  the  namjs 
of  the  divisions  was  not  jurisdictional, 
but  rather  one  of  convenience  for  the 
dispatch  of  business,  so  that  an  error 
as  to  the  selection  of  the  court  of 
first  instance  would  not  result  in  the 
dismissal  of  the  action  or  bill  as  for- 
merly, but,  at  most,  only  in  its  trans- 
fer to  another  division.  Other  im- 
portant changes  were  made,  but  for 
details  the  statutes  must  be  consulted. 

As  the  books  for  generations  back 
are  full  of  references  to  the  old  sys- 
tem, it  has  been  retained  in  the  text. 

2.  Court  of  dusty  feet.  The  de- 
scription of  these  courts  is  now  of 
historical   interest  only. 


442  Courts  of  Common  Law.  [Book  III. 

dust  can  fall  from  the  foot.  [32]  But  the  etymology  given  us  by  a  learned 
modern  writer  [Barrington]  is  much  more  ingenious  and  satisfactory, 
it  being  derived,  according  to  him,  from  pied  puldreaux  (a  pedler,  in  old 
French),  and  therefore  signifying  the  court  of  such  petty  chapmen  as 
resort  to  fairs  or  markets.  It  is  a  court  of  record  incident  to  every  fair 
and  market,  of  which  the  steward  of  him  who  owns  or  has  the  toll  of  the 
market  is  the  judge,  and  its  jurisdiction  extends  to  administer  justice 
for  all  commercial  injuries  done  in  that  very  fair  or  market,  and  not  in 
any  preceding  one.  So  that  the  injury  must  be  done,  complained  of, 
heard,  and  determined  within  the  compass  of  one  and  the  same  day, 
unless  the  fair  continues  longer.  The  court  hath  cognizance  of  all  mat- 
ters of  contract  that  can  possibly  arise  within  the  precinct  of  that  fair 
or  market,  and  the  plaintiff  must  make  oath  that  the  cause  of  au  action 
arose  there.  [33] 

II.  The  court-baron  is  a  court  incident  to  every  manor  in  the  kingdom, 
to  be  holden  by  the  steward  within  the  said  manor.  This  court-baron 
is  of  two  natures:  the  one  is  a  customary  court,  of  which  we  formerly 
spoke,  appertaining  entirely  to  the  copyholders,  in  which  their  estates  are 
transferred  by  surrender  and  admittance,  and  other  matters  transacted 
lelative  to  their  tenures  only.  The  other,  of  which  we  now  speak,  is  a 
court  of  common  law;  and  it  is  the  court  of  the  barons,  by  which  name 
the  freeholders  were  sometimes  anciently  called,  for  that  it  is  held  be- 
fore the  freeholders  who  owe  suit  and  service  to  the  manor,  the  steward 
being  rather  the  registrar  than  the  judge.  These  courts,  though  in  their 
nature  distinct,  are  frequently  confounded  together.  The  court  we  are 
now  considering,  viz.,  the  freeholders'  court,  was  composed  of  the  lord's 
tenants,  who  were  the  pares  of  each  other,  and  were  bound  by  their  feodal 
tenure  to  assist  their  lord  in  the  dispensation  of  domestic  justice.  This 
was  formerly  held  every  three  weeks,  and  its  most  important  business 
is  to  determine,  by  writ  of  right,  all  controversies  relating  to  the  right 
of  lands  within  the  manor.  It  may  also  hold  plea  of  any  personal  ac- 
tions, of  debt,  trespass  on  the  case,  or  the  like,  where  the  debt  or  dam- 
ages do  not  amount  to  forty  shillings. 

III.  A  hundred-court  is  only  a  larger  court-baron,  being  held  for  all 
the  inhabitants  of  a  particular  hundred  instead  of  a  manor.  [34]  The 
free  suitors  are  here  also  the  judges,  and  the  steward  the  registrar,  as 
in  the  case  of  court-baron.  It  is  likewise  no  court  of  record,  resembling 
the  former  in  all  points,  except  that  in  point  of  territory  it  is  of  greater 
jurisdiction. 

IV.  The  couttty-court^  is  a  court  incident  to  the  jurisdiction  of  the 
sheriff.  It  is  not  a  court  of  record,  but  may  hold  pleas  of  debt  or  dam- 
ages under  the  value  of  forty  shillings.  The  county-court  may  also  hold 
plea  of  many  real  actions,  and  of  all  personal  actions  to  any  amount  by 
virtue  of  a  special  writ  called  a  justicies,  which  is  a  writ  empowering 

3.  We  have  county  courts  in  .some  courts  quite  different  from  tiie  one 
of  tlie  states,  but  tliey  are  statutory      described  in  the  text. 


Chap.  IV.]  Courts  of  Common  Law.  443 

the  sheriff  for  the  sake  of  despatch  to  do  the  same  justice  in  his  county- 
court  as  might  otherwise  be  had  at  W&stminster.  [36]  The  freeholders 
of  the  county  are  the  real  judges  in  this  court,  and  the  sheriff  is  thet 
ministerial  officer. 

V.  The  Court  of  Common  Pleas,  or,  as  it  is  frequently- 
termed  in  law,  the  court  of  common  bench.  [37] 

By  the  ancient  Saxon  constitution  there  was  only  one 
superior  court  of  justice  in  the  kingdom,  and  that  court  had 
cognizance  both  of  civil  and  spiritual  causes,  viz.,  the 
wittena-gemote,  or  general  council,  which  assembled  an- 
nually, or  oftener,  wherever  the  king  kept  his  Christmas, 
Easter,  or  Whitsuntide,  as  well  to  do  private  justice  as  to 
consult  upon  public  business.  At  the  Conquest  the  ecclesi- 
astical jurisdiction  was  diverted  into  another  channel,  and 
the  Conqueror,  fearing  danger  from  these  annual  parlia- 
ments, contrived  also  to  separate  their  ministerial  power, 
as  judges,  from  their  deliberative,  as  counselors  to  the 
crown.  He  therefore  established  a  constant  court  in  his 
own  hall,  thence  called  by  Bracton  and  other  ancient  au- 
thors aula  regia,  or  aula  regis.*  This  court  was  composed 
of  the  king's  great  officers  of  state  resident  in  his  palace 
and  usually  attendant  on  his  person.  These  high  officers 
were  assisted  by  certain  persons  learned  in  the  laws,  who 
were  called  the  king's  justiciars  or  justices,  and  by  the 
greater  barons  of  parliament,  all  of  whom  had  a  seat  in  the 
aula  regla,  and  formed  a  kind  of  court  of  appeal,  or  rather 
of  advice,  in  matters  of  great  momeut  and  difficulty.  [38] 
All  these  in  their  several  departments  transacted  all  secular 
business,  both  criminal  and  civil,  and  likewise  the  matters 
of  the  revenue ;  and  over  all  presided  one  special  magistrate, 
called  the  chief  justiciar,  or  capitalis  justiciarius  totius 
Angliae,^  who  was  also  the  principal  minister  of  state,  the 
second  man  in  the  kingdom,  and  by  virtue  of  his  office 
guardian  of  the  realm  in  the  king's  absence.  This  great 
universal  court  being  bound  to  follow  the  king's  household 
in  all  his  progresses  and  expeditions,  the  trial  of  common 
causes  therein  was  found  very  burdensome  to  the  subject. 

4.  Hall   or  Court  of  the  King,  the  5.  Chief  justice  of  all  England. 

Kind's  Bench. 


444  Courts  of  Common  Law.  [Book  IIL 

Wherefore  King  John,  who  dreaded  also  the  power  of  the 
justiciar,  very  readily  consented  to  that  article  which  now 
forms  the  eleventh  chapter  of  Matjna  Carta,  and  enacts 
"  that  communia  placita  non  sequantur  curiam  regis,  sed 
teneantur  in  aliquo  loco  certo.""  This  certain  place  was 
established  in  Westminster  Hall,  the  place  where  the  auJa 
regis  originally  sat  when  the  king  resided  in  that  city,  and 
there  it  hath  ever  since  continued.  And  the  court  being 
thus  rendered  fixed  and  sationary,  the  judge  became  so  too^ 
and  a  chief  with  other  justices  of  the  Common  Pleas  was 
thereupon  appointed,  with  jurisdiction  to.  hear  and  deter- 
*raine  all  pleas  of  land,  and  injuries  merely  civil,  between 
subject  and  subject. 

The  aula  regia  being  thus  stripped  of  so  considerable  a  branch  of  its 
jurisdiction,  and  the  power  of  the  chief  justiciar  being  also  considerably 
curbed  by  many  articles  in  the  Great  Charter,  the  authority  of  both  be- 
gan to  decline  apace  under  the  long  and  troublesome  reign  of  King  Henry 
III.  And,  in  further  pursuance  of  this  example,  the  other,  several  offices 
of  the  chief  justiciar  were  under  Edward  I.  (who  new-modelled  the  whole 
frame  of  our  judicial  polity)  subdivided  and  broken  into  distinct  courts 
of  judicature.  A  court  of  chiyalry  was  erected,  over  which  the  constable 
and  mareschal  presided,  as  did  the  steward  of  the  household  over  an- 
other constituted  to  regulate  the  king's  domestic  servants.  The  high 
steward,  with  the  barons  of  parliament,  formed  an  august  tribunal  for 
the  trial  of  delinquent  peers,  and  the  barons  reserfed  to  themselves  in 
parliament  the  right  of  reviewing  the  sentences  of  other  courts  in  the 
last  resort.  The  distribution  of  common  justice  between  man  and  man 
was  thrown  into  so  provident  an  order  that  the  great  judicial  officers 
were  to  form  a  check  upon  each  other,  the  Court  of  Chancery  issuing  all 
original  writs  under  the  Great  Seal  to  the  other  courts,  the  Common 
Pleas  being  allowed  to  determine  all  causes  between  private  subjects,  the 
Exchequer  managing  the  king's  revenue,  and  the  Court  of  King's  Bench 
retaining  all  the  jurisdiction  which  was  not  cantoned  out  to  other 
courts,  and  particularly  the  superintendence  of  all  the  rest  by  way  of  ap- 
peal, and  the  sole  cognizance  of  pleas  of  the ^ crown  or  criminal 
causes.  [40] 

For  pleas  or  suits  are  regularly  divided  into  two  sorts: 
pleas  of  the  crown,  which  comprehend  all  crimes  and  mis- 

6.  Let  not  the  common  pleas  follow 
the  King's  Court,  but  be  held  in  som« 
cc  rtain  place. 


Chap.  IV.]  Courts  of  Common  Law.  44r> 

demeanors,  wherein  the  king  (on  behalf  of  the  public)  is 
the  plaintiff,  and  common  pleas,  which  include  all  civil 
actions  depending  between  subject  and  subject.  The 
former  of  these  were  the  proper  object  of  the  jurisdiction 
of  the  Court  of  King's  Bench,  the  latter  of  the  Court  of 
Common  Pleas,  which  is  a  court  of  record,  and  is  styled  by 
Sir  Edward  Coke  the  lock  and  key  of  the  common  law;  for 
herein  only  can  real  actions  —  that  is,  actions  which  con- 
cern the  right  of  freehold  or  the  realty  —  be  originally 
brought,  and  all  other  or  personal  pleas  between  man  and 
man  are  likewise  here  determined,  though  in  most  of  them 
the  King's  Bench  has  also  a  concurrent  authority. 

The  judges  of  this  court  are  at  present  four  in  number,  one  chief  and 
three  puisne  Justices,  created  by  the  king's  letters-patent,  who  sit  every 
day  in  the  four  terms  to  hear  and  determine  all  matters  of  law  arising 
In  civil  causes,  whether  real,  personal,  or  mixed  and  compounded  of 
both.  [The  constitution  of  this  and  of  the  other  superior  courts  below 
mentioned  was  changed  by  the  Supreme  Court  of  Judicature  Act,  w^hich 
see.]  These  it  takes  cognizance  of,  as  well  originally  as  upon  removal 
from  the  inferior  courts  before  mentioned.  But  a  writ  of  error,  in  the 
nature  of  an  appeal,  lies  from  this  court  into  the  Court  of  King's  Bench. 

VI.  The  Court  of  Kings  Bench  (so  called  because  the 
king  used  formerly  to  sit  there  in  person,  the  style  of  the 
court  still  being  coram  ipso  regeY  is  the  supreme  court  of 
common  law  in  the  kingdom,  consisting  of  a  chief  justice 
and  three  puisne^  justices,  who  are  by  their  office  the  sov- 
ereign conservators  of  the  peace  and  supreme  coroners  of 
the  land.  [41]  Yet  though  the  king  himself  used  to  sit  in 
this  court,  and  still  is  supposed  so  to  do,  he  did  not,  neither 
by  law  is  he  empowered  to,  determine  any  cause  or  motion 
but  by  the  mouth  of  his  judges,  to  whom  he  hath  committed 
his  whole  judicial  authority. 

This  court,  which  (as  we  have  said)  is  the  remnant  of  the 
aula  regia,  is  not,  nor  can  be,  from  the  very  nature  and 
constitution  of  it,  fixed  to  any  certain  place,  but  may  follow 
the  king's  person  wherever  he  goes;  for  which  reason  all 
process  issuing  out  of  this  court  in  the  king's  name  is  re- 

7.  Before  the  king  himself.  8.  Younger. 


446  Courts  of  Common  Law.  [Book  III. 

tnrnable  ^'  uhicunqu^  fiierimufi  in  Aiif/liu."^  It  hath,  indeed, 
for  some  centuries  past,  usually  sat  at  Westminster,  being 
an  ancient  palace  of  the  crown,  but  mij^ht  remove  with  the 
king  to  York  or  Exeter,  if  he  thought  proper  to  command  it. 
The  jurisdiction  of  this  court  is  very  high  and  transcend- 
ent. It  keeps  all  inferior  jurisdictions  within  the  bounds 
of  their  authority,  and  may  either  remove  their  proceedings 
to  be  determined  here,  or  prohibit  their  progress  below.  [42] 
It  superintends  all  civil  corporations  in  the  kingdom.  It 
commands  magistrates  and  others  to  do  what  their  duty 
requires,  in  every  case  where  there  is  no  other  specific 
remedy.  It  protects  the  liberty  of  the  subject  by  speedy 
and  summary  interposition.  It  takes  cognizance  both  of 
criminal  and  civil  causes;  the  former  in  what  is  called  the 
crown-side  or  crown-office,  the  latter  in  the  plea-side  of  the 
court.  The  jurisdiction  of  the  crown-side  it  is  not  our 
present  business  to  consider.  But  on  the  plea-side,  or  civil 
branch,  it  hath  an  original  jurisdiction  and  cognizance  of 
all  actions  of  trespass,  or  other  injury  alleged  to  be  com- 
mitted vi  ct  armis;^  of  actions  for  forgery  of  deeds,  main- 
tenance, conspi]*acy,  deceit,  and  actions  on  the  case  which 
allege  any  falsity  or  fraud;  all  of  which  savor  of  a  criminal 
nature,  although  the  action  is  brought  for  a  civil  remedy, 
and  make  the  defendant  liable  in  strictness  to  pay  a  fine 
to  the  king  as  well  as  damages  to  tlie  injured  party.  The 
same  doctrine  is  also  now  extended  to  all  actions  on  the 
case  whatsoever;  but  no  action  of  debt  or  detinue,  or  other 
mere  civil  action,  can  by  the  common  Iqw  be  prosecuted  by 
any  subject  in  this  court,  by  original  writ  out  of  Chancery, 
though  an  action  of  debt,  given  by  statute,  may  be  brought 
in  the  King's  Bench  as  well  as  in  the  Common  Pleas.  And 
yet  this  court  might  always  have  held  plea  of  any  civil 
action  (other  than  actions  real),  provided  the  defendant 
was  an  officer  of  the  court,  or  in  the  custody  of  the  marshal 
or  prison-keeper  of  this  court,  for  a  breach  of  the  peace  or 
any  other  oifence.  And  in  process  of  time  it  began  by  a 
fiction  to  hold  plea  of  all  personal  actions  whatsoever,  and 

-9.  Wherever    we   shall    be    in    Eng-  1.  Force  and  arms, 

land. 


Cjiap.  IV.]  Courts  of  Common  Law.  447 

lias  continued  to  do  so  for  ages;  it  being  surmised  tliat  the 
defendant  is  arrested  for  a  supposed  trespass  which  he 
never  has  in  reality  committed,  and  being  thus  in  the  cus- 
tody of  the  marshal  of  the  court,  the  plaintiff  is  at  liberty 
to  proceed  against  him  for  any  other  personal  injury,  which 
surmise  of  being  in  the  marshal's  custody  the  defendant  is 
not  at  liberty  to  dispute.  [43]  And  these  fictions  of  law, 
though  at  first  they  may  startle  the  student,  he  will  find 
upon  further  consideration  to  be  highly  beneficial  and  use- 
ful, especially  as  this  maxim  is  ever  invariably  observed, 
that  no  fiction  shall  extend  to  work  an  injury,  its  proper 
operation  being  to  prevent  a  mischief  or  remedy  an  incon- 
venience that  might  result  from  the  general  rule  of  law. 

For  this  court  is  likewise  a  court  of  appeal  into  which 
may  be  removed  by  a  writ  of  error  all  determinations  of 
the  Court  of  Common  Pleas  and  all  inferior  courts  of  record 
in  England,  and  to  which  a  writ  of  error  lies  also  from  the 
Court  of  King's  Bench  in  Ireland.  Yet  even  this  so  high 
and  honorable  court  is  not  the  dernier  resort  of  the  subject, 
for  if  he  be  not  satisfied  with  any  determination  here  he 
may  remove  it  by  writ  of  error  into  the  House  of  Lords  or 
the  Court  of  Exchequer  Chamber,  as  the  case  may  happen, 
according  to  the  nature  of  the  suit  and  the  manner  in  which 
it  has  been  prosecuted. 

VII.  The  Court  of  Exchequer  is  inferior  in  rank  not  only 
to  the  Court  of  King's  Bench,  but  to  the  Common  Pleas 
also;  but  I  have  chosen  to  consider  it  in  this  order  on  ac- 
count of  its  double  capacity  as  a  court  of  law  and  a  court 
of  equity  also.  It  is  a  very  ancient  court  of  record  set  up 
by  William  the  Conqueror  as  a  part  of  the  aula  regia,  though 
regulated  and  reduced  to  its  present  order  by  King  Edw^ard 
I.,  and  intended  principally  to  order  the  revenues  of  the 
crown  and  to  recover  the  king's  debts  and  duties.  [44]  It 
consists  of  two  divisions :  the  receipt  of  the  exchequer  which 
manages  the  royal  revenue,  and  with  which  these  Commen- 
taries have  no  concern,  and  the  court  or  judicial  part  of  it, 
Avhich  is  again  subdivided  into  a  court  of  equity  and  a  court 
of  common  law. 


44S  Courts  of  Equity.  [Book  ITT. 

The  Court  of  Equity  is  held  in  the  P^xchequer  Chamher 
before  the  Lord  Treasurer,  the  Cliancellor  of  the  Exchequer, 
the  Chief  Baron,  and  three  puiwe  ones.  The  primary  and 
original  business  of  this  court  is  to  call  the  king's  debtors 
to  account  by  bill  filed  by  the  attorney-general,  and  to  re- 
cover any  lands,  tenements,  or  hereditaments,  any  goods, 
chattels,  or  other  profits  or  benefits,  belonging  to  the  crown. 
So  that  by  their  original  constitution  the  jurisdiction  of 
the  Court  of  Common  Pleas,  King's  Bench,  and  Exchequer 
was  entirely  separate  and  distinct :  the  Common  Pleas  being 
intended  to  decide  all  controversies  between  subject  and 
subject;  the  King's  Bench  to  correct  all  crimes  and  misde- 
meanors that  amount  to  a  breach  of  the  peace,  the  king 
being  then  plaintiff,  as  such  offences  are  in  open  derogation- 
of  the  jura  regalia^  of  his  crown;  and  the  Exchequer  to  ad- 
just and  recover  his  revenue,  wherein  the  king  also  is  plain- 
tiff, as  the  withholding  and  non-payment  thereof  is  an  in- 
jury to  his  jura  fiscalia.  [45]  But,  as  by  a  fiction  almost 
all  sorts  of  civil  actions  are  now  allowed  to  be  brought  in 
the  King's  Bench,  in  like  manner  by  another  fiction  all 
kinds  of  personal  suits  may  be  prosecuted  in  the  Court  of 
Exchequer.  For  as  all  the  officers  and  ministers  of  this 
court  have,  like  those  of  other  superior  courts,  the  privilege 
of  suing  and  being  sued  only  in  their  own  court,  so  also  tlie 
king's  debtors  and  farmers,  and  all  accomptants  of  the 
Exchequer,  are  privileged  to  sue  and  implead  all  manner 
of  persons  in  the  same  court  of  equity  that  they  themselves 
are  called  into.  They  have  likewise  privilege  to  sue  and 
implead  one  another,  or  any  stranger,  in  the  same  kind  of 
common-law  actions  (where  the  personalty  only  is  con- 
cerned) as  are  prosecuted  in  the  Court  of  Common  Pleas. 

This  gives  origin  to  the  common-law  part  of  their  juris- 
diction, which  was  established  merely  for  the  benefit  of  the 
king's  accomptants,  and  is  exercised  by  the  barons  only  of 
the  Exchequer,  and  not  the  treasurer  or  chancellor.  Thfv 
writ  upon  which  all  proceedings  here  are  grounded  is  called 
a  quo  minus,  in  which  the  plaintiff  suggests  that  he  is  the 
king's  farmer  or  debtor,  and  that  the  defendant  hath  done 

2.  Royal  righta. 


Chap.  IV.]  Courts  of  Equity.        "  4-lD 

him  the  injury  or  damage  complained  of,  quo  minus  suffi- 
<'iens  existit,^  by  which  he  is  less  able  to  pay  the  king  his 
■debt  or  rent.  And  these  suits  are  expressly  directed,  by 
what  is  called  the  statute  of  Rutland,  to  be  confined  to  such 
matters  only  as  specially  concern  the  king  or  his  ministers 
of  the  Exchequer.  And  by  the  articuli  super  cartas*  it  is 
enacted  that  no  common  plea  be  thenceforth  holden  in  the 
Exchequer  contrary  to  the  form  of  the  Great  Charter.  But 
now,  by  the  suggestion  of  privilege,  any  person  may  be 
admitted  to  sue  in  the  Exchequer  as  well  as  the  king's  ac- 
comptant.  The  surmise,  of  being  debtor  to  the  king,  is 
therefore  become  matter  of  form  and  mere  words  of  course, 
and  the  court  is  open  to  all  the  nation  equally.  The  same 
holds  with  regard  to  the  equity  side  of  the  court,  for  there 
any  person  may  file  a  bill  against  another  upon  a  bare  sug- 
gestion that  he  is  the  king's  accoraptant;  but  whether  he 
is  so  or  not  is  never  controverted,  [46]  In  this  court  on  the 
equity  side  the  clergy  have  long  used  to  exhibit  their  bills 
for  the  non-payment  of  thithes,  in  which  case  the  surmise 
of  being  fhe  king's  debtor  is  no  fiction,  they  being  bound 
to  pay  him  their  first-fruits  and  annual  tenths.  But  the 
Chancery  has  of  late  years  obtained  a  large  share  in  this 
business. 

An  appeal  from  the  equity  side  of  this  court  lies  imme- 
diately to  the  House  of  Peers;  but  from  the  common  law 
side,  in  pursuance  of  the  statute  31  Edw.  III.  c.  12,  a  writ 
of  error  must  be  first  brought  into  the  Court  of  Exchequer 
Chamber.  And  from  the  determination  there  had  there  lies 
in  the  dernier  resort^  a  writ  of  error  to  the  House  of  Lords. 

VIII.  The  High  Court  of  Chancery  is  the  only  remaining, 
and  in  matters  of  civil  property  by  much  the  most  import- 
ant of  any  of  the  king's  superior  and  original  courts  of 
justice.  It  has  its  name  of  chancery,  cancelkiria.  from  the 
judge  who  presides  here,  the  Lord  Chancellor  or  Cancel- 
larius,  who,  Sir  Edward  Coke  tells  us,  is  so  termed  a  canccl- 
lando  from  cancelling  the  king's  letters  patent  when 
.  granted  contrary  to  law,  which  is  the  highest  point  of  his 

3.  By  wliicli   he  is  less  able.  5.  Ijist  resort. 

4.  Articles  on  the  charters. 

29 


450  Courts  of  Equity.  [Book  III. 

jurisdiction.  "When  seals  came  in  use  lie  had  always  the 
custody  of  the  king's  great  seal.  [47]  So  that  the  office  of 
chancellor  or  lord  keeper  (whose  authority  by  statute  5 
Eliz.  c.  18,  is  declared  to  be  exactly  the  same)  is  with  us 
at  this  day  created  by  the  mere  delivery  of  the  king's  great 
seal  into  his  custody,  whereby  he  becomes,  without  writ  or 
patent,  an  officer  of  the  greatest  weight  and  power  of  any 
now  subsisting  in  the  kingdom,  and  superior  in  point  of 
precedency  to  every  temporal  lord. 

He  is  a  Privy  Councillor  by  his  office,  and,  according  to  Lord  Chancellor 
EUesmere,  prolocutor  of  the  House  of  Lords  by  prescription.  To  him  be- 
longs the  appointment  of  all  justices  of  the  peace  throughout  the  king- 
dom. Being  formerly  usually  an  ecclesiastic  (for  none  else  were  then 
capable  of  an  office  so  conversant  in  writings),  and  presiding  over  the 
royal  chapel,  he  became  keeper  of  the  king's  conscience;  visitor,  in 
right  of  the  king,  of  all  hospitals  and  colleges  of  the  king's  foundation; 
and  patron  of  all  the  king's  livih©9  .under  the  value  of  twenty  marks 
per  annum  in  the  king's  books.  He  is  the  general  guardian  of  all  infants, 
idiots,  and  lunatics,  and  has  the  general  superintendence  of  all  charitable 
uses  in  the  kingdom.  • 

And  all  this,  over  and  above  the  vast  and  extensive  juris- 
diction which  he  exercises  in  his  judicial  capacity  in  the 
Court  of  Chancery;  wherein,  as  in  the  Exchequer,  there  are 
two  distinct  tribunals:  the  one  ordinary,  being  a  court  of 
common  law;  the  other  extraordinary,  being  a  court  of 
equity. 

The  ordinary  legal  court  is  much  more  ancient  than  the  court  of  equity. 
Its  jurisdiction  is  to  hold  plea  upon  a  scire  facias^  to  repeal  and  cancel 
the  kign's  letters-patent,  when  made  against  law,  or  upon  untrue  sug- 
gestions; and  to  hold  plea  of  petitions,  monstran%  de  droit  ^  traverses  of 
offices,  and  the  like,  when  the  king  hath  been  advised  to  do  any  act,  or  is 
put  in  possession  of  any  lands  or  goods,  in  prejudice  of  a  subject's  right. 
It  also  appertains  to  this  court  to  hold  plea  of  all  personal  actions,  where 
any  officer  or  minister  of  the  court  is  a  party.  [48]  It  might  likewise 
hold  plea  (by  scire  facias)  of  partitions  of  land  in  coparcenery,  and  of 
dower,  where  any  ward  of  the  crown  was  concerned  in  interest,  so  long 
as  the  military  tenures  subsisted;  as  it  now  may  also  do  of  the  tithes 
of  forest  land,  where  granted  by  the  king,  and  claimed  by  a  stranger 

6.  :Mal;e  known  or  show  why.  7.  Sliowing  of  riglit. 


CiiAr.  IV.]        "  Courts  of  Equity.  451 

against  the  grantee  of  the  crown,  and  of  executions  on  sta-tutes,  or  re- 
cognizances in  nature  thereof,  by  the  statute  23  Hen.  VIII.  c.  6.  But  if 
any  cause  comes  to  Issue  in  this  court,  that  is,  if  any  fact  be  disputed 
between  the  parties,  the  chancellor  cannot  try  it,  having  no  power  to 
summon  a  jury,  but  must  deliver  the  record  propria  manu  s  into  the  Court 
of  King's  Bench,  where  it  shall  be  tried  by  the  country  and  judgment* 
shall  be  there  given  thereon.  And  when  judgment  is  given  in  chancery 
upon  demurrer  or  the  like,  a  writ  of  error  in  nature  of  an  appeal  lies 
out  of  this  ordinary  court  into  the  Court  of  King's  Bench;  though  so 
little  is  usually  done  on  the  common-law  side  of  the  court,  that  I  have 
met  with  no  traces  of  any  writ  of  error  being  actually  brought  since  the 
fourteenth  year  of  Queen  Elizabeth,  A.  D.  1572, 

In  this  ordinary  or  legal  court  is  also  kept  the  officina 
justitiae;^  out  of  which  all  original  writs  that  pass  under 
the  great  seal,  all  commissions  of  charitable  uses,  sewers, 
bankruptcy,  idiocy,  lunacy,  and  the  like,  do  issue;  and  for 
which  it  is  always  open  to  the  subject,  who  may  there  at 
any  time  demand  and  have,  ex  dchito  justitiae^  any  writ 
that  his  occasions  may  call  for.  [49] 

But  the  Extraordinary  Court,  or  Court  of  Equity,  is  now 
become  the  court  of  the  greatest  judicial  consequence. 

In  early  times  the  chief  judicial  employment  of  the  chan- 
cellor must  have  been  in  devising  new  writs,  directed  to  the 
courts  of  common  law,  to  give  remedy  in  cases  where  none 
was  before  administered.  And  to  quicken  the  diligence  of 
the  clerks  in  the  chancery,  who  were  too  much  attached 
to  ancient  precedents,  it  is  provided  by  statute  Westm.  2, 
13  Edw.  I.  c.  24,  that  "  Whensoever  from  thenceforth  in 
one  case  a  writ  shall  be  found  in  the  Chancery,  and  in  a 
like  case  falling  under  the  same  right  and  requiring  like 
remedy,  no  precedent  of  a  writ  can  be  produced,  the  clerks 
in  Chancery  shall  agree  in  forming  a  new  one;  and,  if  they 
cannot  agree,  it  shall  be  adjourned  to  the  next  parliament, 
where  a  writ  shall  be  framed  by  consent  of  the  learned  in 
the  law,  lest  it  happen  for  the  future,  that  the  court  of  our 
lord  the  king  be  deficient  in  doing  justice  to  the  suit- 
ors." [51]  And  this  accounts  for  the  very  great  variety  of 
writs  of  trespass  on  the  case,  to.  be  met  with  in  the  register, 

_ ^  i:[i;'I'.t'> 

8.  With  his  own  hand.  1.  Out  of  debt  to  justioo. 


0.  Office  of  justice.  .'■>   K    viietsviO  .8 


452  Courts  of  Equity.  [Book  III. 

whereby  the  suitor  had  ready  relief,  according  to  the  ex- 
igency of  his  business,  and  adajjted  to  the  specialty,  reason, 
and  equity  of  his  very  case,  —  which  provision  (with  a  little 
accuracy  in  the  clerks  of  the  Chancery,  and  a  little  liberality 
in  the  judges,  by  extending  rather  than  narrowing  the 
remedial  effects  of  the  writ)  might  have  effectually  an- 
swered all  the  purposes  of  a  court  of  equity,  except  that  of 
obtaining  a  discovery  by  the  oath  of  the  defendant. 

But  when,  about  the  end  of  the  reign  of  King  Edward 
III.,  uses  of  land  were  introduced,  and,  though  totally  dis- 
countenanced by  the  courts  of  common  law,  were  considered 
as  fiduciary  deposits  and  binding  in  conscience  by  the 
clergy,  the  separate  jurisdiction  of  the  Chancery  as  a  court 
of  equity  began  to  be  established;  and  John  Waltham,  who 
was  Bishop  of  Salisbury  and  Chancellor  to  King  Richard 
IT.,  by  a  strained  interpretation  of  the  above-mentioned 
statute  of  Westm.  2,  devised  the  writ  of  subpoena,  return- 
able in  the  Court  of  Chancery  only,  to  make  the  feoffee  to 
uses  accountable  to  his  ecsiwj  que  use;  and  in  Edward  IV. 's 
time  the  process  by  bill  and  subpoena  was  become  the  daily 
practice  of  the  court.  [52] 

But  this  did  not  extend  very  far;  for  in  the  ancient 
treaties,  entitled  diversite  des  court es,^  supposed  to  be  writ- 
ten very  early  in  the  sixteenth  century,  we  have  a  catalogue 
of  the  matters  of  conscience  then  cognizable  by  subpoena  in 
Chancery,  which  fall  within  a  very  narrow  compass.  [53] 
No  regular  judicial  system  at  that  time  prevailed  in  the 
court;  but  the  suitor,  when  he  thought  himself  aggrieved, 
found  a  desultory  and  uncertain  remedy,  according  to  the 
private  opinion  of  the  chancellor,  who  was  generally  an 
ecclesiastic,  or  sometimes  (though  rarely)  a  statesman;  no 
lawyer  having  sat  in  the  Court  of  Chancery  from  the  times 
of  the  Chief  Justices  Thorpe  and  Knyvet,  successively  chan- 
cellors to  King  E]dward  III.  in  1372  and  1373,  to  the  pro- 
motion of  Sir  Thomas  More  by  King  Henry  VIII.  in  1530. 
After  which  the  great  seal  was  indiscriminately  committed 
to  tlie  custody  of  lawyers,  or  couriers,  or  churchmen,  ac- 
cording as  the  convenience  of  the  times  and  disposition  of 

2.  Diveraity  of   courts. 


Chap.  IV.]  Courts  of  Equity.  453 

the  prince  required,  till  Serjeant  Puckering  was  made  lord 
keeper  in  1592;  from  which  time  to  the  present  the  Court 
of  Chancery  has  always  been  filled  by  a  lawyer,  excepting 
the  interval  from  1621  to  1625,  when  the  seal  was  intrusted 
to  Dr.  Williams,  then  Dean  of  Westminster  but  afterwards 
Bishop  of  Lincoln;  who  had  been  chaplain  to  Lord  Elles- 
mere  when  chancellor. 

Lord  Bacon,  who  succeeded  Lord  Ellesmere,  reduced  the 
practice  of  the  court  into  a  more  regular  system,  but  did 
not  sit  long  enough  to  effect  any  considerable  revolution  in 
the  science  itself;  and  few  of  his  decrees  which  have  reached 
us  are  of  any  great  consequence  to  posterity.  His  succes- 
sors, in  the  reign  of  Charles  L,  did  little  to  improve  upon 
his  plan;  and  even  after  the  Restoration  the  seal  was  com- 
mitted to  the  Earl  of  Clarendon,  who  had  w^ithdrawn  from 
practice  as  a  law^yer  near  twenty  years;  and  afterwards  to 
the  Earl  of  Shaftesbury,  who  (though  a  lawyer  by  educa- 
tion) had  never  practised  at  all.  Sir  Heneage  Finch,  who 
succeeded  in  1673,  and  became  afterwards  Earl  of  Notting- 
ham, a  person  of  the  greatest  abilities  and  most  uncorrupted 
integrity,  a  thorough  master  and  zealous  defender  of  the 
laws  and  constitution  of  his  country,  was  enabled,  in  the 
course  of  nine  years,  to  build  a  system  of  jurisprudence  and 
jurisdiction  upon  wide  and  rational  foundations,  which 
have  also  been  extended  and  improved  by  manj'^  great  men, 
who  have  since  presided  in  Chancery.  [55]  And  from  that 
time  to  this,  the  power  and  business  of  the  court  have  in- 
creased to  an  amazing  degree. 

From  this  court  of  equity  in  Chancery,  as  from  the  other 
superior  courts,  an  appeal  lies  to,  the  House  of  Peers.  But 
there  are  these  diiferences  between  appeals  from  a  court  of 
equity  and  writs  of  error  from  a  court  of  law:  1.  That  the 
former  may  be  brought  upon  any  interlocutory  matter,  the 
latter  upon  nothing  but  only  a  definite  judgment:  2.  That 
on  writs  of  error  the  House  of  Lords  pronounces  the  judg- 
ment, on  appeals  it  gives  direction  to  the  court  below  to 
"rectify  its  own  decree. 

IX.  The  next  court  that  I  shall  mention  is  one  that  hath 
no  original  jurisdiction  but  is  only  a  court  of  appeal,  to 


454-  Courts  of  Equity.  [Book  III. 

correct  tlie  errors  of  otlier  jurisdictions.  This  is  the  Court 
of  Exchequer  Chamber,  which  was  first  erected  by  statute 
31  Edw.  in.  c.  12,  to  determine  causes  by  writs  of  error 
from  the  common-law  side  of  the  Court  of  Exchequer.  And 
to  that  end  it  consists  of  the  Lord  Chancellor  and  Lord 
Treasurer,  taking  unto  them  the  justices  of  the  King's 
Bench  and  Common  Pleas.  In  imitation  of  which  a  second 
Court  of  Exchequer  Chamber  was  erected  by  statute  27 
Eliz.  c.  8,  consisting  of  the  justices  of  the  Common  Pleas 
and  the  barons  of  the  Exchequer,  before  whom  writs  of 
error  may  be  brought  to  reverse  judgments  in  certain  suits 
originally  begun  in  the  Court  of  King's  Bench.  [56]  Into 
the  court,  also  of  Exchequer  Chamber  (which  then  consists 
of  all  the  judges  of  the  three  superior  courts,  and  now  and 
then  the  Lord  Chancellor  also),  are  sometimes  adjourned 
from  the  other  courts  such  causes  as  the  judges  upon  argu- 
ment find  to  be  of  great  weight  and  difficulty,  before  any 
judgment  is  given  upon  them  in  the  court  below. 

From  all  the  branches  of  this  Court  of  Exchequer  Cham- 
ber a  writ  of  error  lies  to 

X.  The  House  of  Peers,  which  is  the  supreme  court  of 
judicature  in  the  kingdom,  having  at  present  no  original 
jurisdiction  over  causes,  but  only  upon  appeals  and  writs 
of  error,  to  rectify  any  injustice  or  mistake  of  the  law  com- 
mitted by  the  courts  below. 

XL  Courts  of  Assize  and  Nisi  Prius  are  composed  of  two 
or  more  commissioners  who  are  twdce  in  every  year  sent 
by  the  king's  special  commission  all  round  the  kingdom 
(except  London  and  Middlesex,  where  courts  of  nisi  priiis^ 
are  holden  in  and  after  every  term  before  the  chief  or  other 
judge  of  the  several  superior  courts,  and  except  the  four 
northern  counties,  where  the  assizes  are  holden  only  once 
a  year)  to  try  by  a  jury  of  the  respective  counties  the  trutli 
of  such  matters  of  fact  as  are  then  under  dispute  in  tlie 
courts  of  Westminster  Hall.  [57]  These  judges  of  assize 
came  into  use  in  the  room  of  the  ancient  justices  in  eyre, 
jiisticmri  in  itinere:  but  the  present  justices  of  assize  ami 
nisi  prius  are  more  immediately  derived  from  the  statute 


3.  Unless  before. 


Chap.  IV.]  Couets  of  Equity.  455 

Westm.  2, 13  Edw.  I.  c.  30,  which  directs  them  to  be  assigned 
out  of  the  king's  sworn  justices,  associating  to  themselves  one 
or  two  discreet  knights  of  each  county.  [58] 

The  judges  upon  their  circuits  now  sit  by  virtue  of  five 
several  authorities.  I.  The  commission  of  the  peace.  2.  A 
commission  of  oyer  and  terminer.  3.  A  commission  of  gen- 
eral gaol-delivery.  The  consideration  of  all  which  belongs 
properly  to  the  subsequent  book  of  these  Commentaries.  [59] 
4.  A  commission  of  assize  directed  to  the  justices'  and  Ser- 
jeants therein  named,  to  take  (together  with  their  associates) 
assizes  in  the  several  counties;  that  is,  to  take  the  verdict  of 
a  peculiar  species  of  jury  called  an  assize,  and  summoned 
for  the  trial  of  landed  disputes,  of  which  hereafter,  5.  That 
of  nisi  prius,  which  is  a  consequence  of  the  commission  of 
assize,  being  annexed  to  the  office  of  those  justices  by  the 
statute  of  Westm.  2,  13  Edw.  I.  c.  30,  and  it  empowers  them 
to  try  all  questions  of  fact  issuing  out  of  the  courts  of  West- 
minster, that  are  then  ripe  for  trial  by  jury.  These  by  the 
course  of  the  courts  are  usually  appointed  to  be  tried  at 
Westminster  in  some  Easter  or  Michaelmas  term,  by  a  jury 
returned  from  the  county  wherein  the  cause  of  action  arises ; 
but  with  this  proviso,  nisi  prius,  unless  before  the  day  pre- 
fixed the  judges  of  assize  come  into  the  county  in  question. 
This  they  are  sure  to  do  in  the  vacations  preceding  each 
Easter  and  Michaelmas  term,  which  saves  much  expense  and 
trouble.* 

4.  The  judicial  system  of  the  states  Tennessee,   and   perhaps   other  states, 

consists  under  different  names,  of  (1)  there  are  separate  chancery  courts. 

Inferior   courts   not   of   record   called  (4)   In    some   of   the   states,   as    in 

courts  of  justices  of  the  peace,  whose  Illinois,    there    are    intermediate    ap- 

jurisdiction   is  conferred   and  limited  pellate  courts,  having  no  original  ju- 

by  statute  and  varies  somewhat  in  the  risdiction. 

<lifferent    states.      The    federal    juris-  (5)    Supreme    courts    having    only 

diction  has  no  corresponding  court.  appellate  jurisdiction  except  in  a  few 

(2)  County  courts,  probate  courts,  special  cases.  Besides  these  there  are 
etc.  County  courts  sometimes  have  a  frequently  in  large  cities  special  city 
limited  common  law  jurisdiction.  courts  established  by  statute,  as   su- 

(3)  Circuit    or    district    courts    of  perior    courts,    criminal    courts,    mu- 
both  general  common  law  and  equity  nicipal  courts,   probate  courts,  etc. 
jurisdiction.      These    are    our    courts  "  The  judicial  power  of  the  United 
of    nisi   prius.      In    New    Jersey    and  States  shall  be  vested  in  one  Supreme 


45C  ^  Ecclesiastical  Courts  [Book  HI, 

CHAPTER  V. 

OF  COUBTS  ECCLESIASTICAL,  MILITARY,  AND  MARITIME. 

[See  the  Supreme  Court  of  Judicature  Act,  already  referred 

to.] 

I.  [The  different  species  of  ecclesiastical  courts  in  our  author's  time, 
beginning  with  the  lowest,  were  (1)  the  Archdeacon's  Court;  (2)  the 
Consistory  Court  of  every  diocesan  bishop;  (3)  the  Court  of  Arches;  (4) 
the  Court  of  Peculiars;  (5)  the  Prerogatlre  Court;  (6)  the  Court  of  Dele- 
gates; and  sometimes  (7)  a  Commission  of  RcTlew;  none  of  which  were 
courts  of  record.    For  particulars  see  the  text,  p.  61  et  eeg.] 

II.  Next,  as  to  the  courts  military.  [68]  The  only  court  of  this  kind 
known  to  and  established  by  the  permanent  laws  of  the  land  is  the  Court 
of  Chivalry.    [Now  obsolete.] 

III.  The  Maritime  Courts,  or  such  as  have  power  and 
jurisdiction  to  determine  all  maritime  injuries  arising  upon 
the  seas  or  in  parts  out  of  the  reach  of  the  common  law, 
are  only  the  Court  of  Admiralty  and  its  courts  of  appeal. 
[69]     The  Court  of  Admiralty  is  held  before  the  Lord  High 

Admiral  of  England  or  his  deputy,  who  is  called  the  judge 
of  the  court.  ^  According  to  Sir  Henry  Spelman  and  Lam- 
bard  it  was  first  of  all  erected  by  King  Edward  III.  Its 
proceedings  are,  according  to  the  method  of  the  civil  law, 
like  those  of  the  ecclesiastical  courts,  upon  which  account 
it  is  usually  held  at  the  same  place  with  the  superior  ecclesi- 
astical courts,  at  Doctor's  Commons  in  London.  It  is  no 
court  of  record  any  more  than  the  spiritual  courts. 

Court  and  in  such  inferior  courts  as  (4)    Besides    tiiese    there    are    the 

the  Congress  may  from  time  to  time  court  of  claims,  the  court  of  customs 

ordain  and  establish."     U.  S.  Const.,  appeal,  the  commerce  court,  the  court* 

art.  3,  sfc.  1.  of   the  District  of  Columbia  and  tlie 

At   the   present*  time    (1914)    this  territorial  courts, 
judicial    power    is    exercised    by    (1)  For  details  as  to  the  distributions 
the    United     States    District     Court,  and  method  of  exercise  of  this  juris- 
which   is  the  court  of  original  juris-  diction,  consult  Hughes'  Fcder.il  Pro- 
diction  or  nisi  prius  court.  cedure  (2d  Ed.),  chs.  2,  11  and  21. 

(2)  The  appellate  jurisdiction  is  1.  This  jurisdiction  is  with  us 
exercised  by  the  Circuit  Courts  of  vested  in  the  United  States  District 
Appeal;   and  Court,  which   is  a  court  of  record. 

(3)  The     Supreme    Court    of    the 
United  States, 


CuAP.  VI.]        Courts  op  Special  Jurisdiction'.  457 


CHAPTER  VI. 

of  courts  of  a  special  JURISDICTION". 

[These  courts,  whose  jurisdiction  was  private  and  special,  confined  to 
particular  spots  or  Instituted  only  to  redress  particultir  injuries,  were 
the  following:  (1)  Forest  courts;  (2)  the  Court  of  Commissioners  of 
Sewers;  (3)  the  Court  of  Policies  of  Insurance;  (4)  the  Court  of  Mar- 
shalsea  and  the  Palace-Court  at  Westminster;  (5)  The  courts  of  the 
Principality  of  Wales;  (6)  the  Court  of  the  Duchy  Chamber  of  Lancaster; 
(7)  the  courts  appertaining  to  the  Counties  Palatine  of  Chester,  Lancas- 
ter, and  Durham,  and  the  royal  franchise  of  Ely;  (8)  the  Stannary  courts 
in  DeTonshire  and  Cornwall;  (9)  the  sereral  courts  held  within  the  City 
of  London,  and  other  cities,  &c.,  by  prescription,  &c.;  and  (10)  the 
Chancellor's  courts  in  the  two  Unirersities ;  for  particulars  as  to  which 
see  the  text,  p.  71  et  seq.} 


458  Of  the  Cognizance  [Book  III. 

CHAPTER  VII. 

OF  THE  COGNIZANCE  OF  PKIVATE   WRONGS. 

The  common  law  of  England '  is  the  one  uniform  rule  to 
determine  th€^  jurisdiction  of  our  courts,  and  if  any  tribunals 
whatsoever  attempt  to  exceed  the  limits  so  prescribed  them, 
the  king 's  courts  of  common  law  may  and  do  prohibit  them, 
and  in  some  cases  punish  their  judges.  [87] 

Having  premised  this  general  caution,  I  proceed  now  to 
consider,  — 

I.  The  wrongs  or  injuries  cognizable  by  the  ecclesiastical 
courts.  I  mean  such  as  are  offered  to  private  persons  or 
individuals  which  are  cognizable  by  the  ecclesiastical  court, 
not  for  reformation  of  the  offender  himself  or  party  injuring 
(pro  salute  animae,^  as  is  the  case  with  immoralities  in 
general  when  unconnected  with  private  injuries),  but  for 
the  sake  of  the  party  injured ,  to  make  him  a  satisfaction 
and  redress  for  the  damage  which  he  has  sustained.  [88] 
And  these  I  shall  reduce  under  three  general  heads:  of 
causes  pecuniary,  causes  matrimonial,  and  causes  testa- 
mentary. 

1.  Pecuniary  causes  cognizable  in  the  ecclesiastical  courts  are  such  as 
arise  either  from  the  withholding  ecclesiastical  dues,  or  the  doing  or 
neglecting  some  act  relating  to  the  church  whereby  some  damage  accrues 
to  the  plaintiff,  towards  obtaining  a  satisfaction  for  which  he  is  per- 
mitted to  institute  a  suit  in  the  spiritual  court  [such  are  the  subtraction 
or  withholding  of  tithes  from  the  parson  or  vicar,  the  non-payment  of 
other  ecclesiastical  dues  to  the  clergy,  spoliation,  and  dilapidation,  which 
is  a  kind  of  ecclesiastical  waste]. 

2.  Matrimonial  causes,  or  injuries  respecting  the  rights 
of  marriage,  are  another  branch  of  the  ecclesiastical  juris- 
diction. [92] 

Of  matrimonial  causes,  one  of  the  first  and  principal  is, — 

(1)  Causa  jactitationis  matrimouil,^  when  one  of  the  parties  boasts  or 
gives  out  that  he  or  she  is  married  to  the  other,  whereby   a  common 

1.  As  modified  by  statute.  3.  By   reason   of   boasting  of  mar* 

2.  For  tlie  safety  of  his  soul.  riage. 


CuAP.  VII.]  OF  Private  Wrongs.  459 

reputation  of  their  matrimony  may  ensue.  On  this  ground  the  party 
injured  may  libel  the  other  in  the  spiritual  court,  and,  unless  the  defend- 
ant undertakes  and  makes  out  a  proof  of  the  actual  marriage,  he  or  she 
is  enjoined  perpetual  silence  upon  that  head,  which  is  the  only  remedy 
the  ecclesiastical  courts  can  give  for  this  injury.  (2)  Another  species 
of  matrimonial  causes  was  when  a  party  contracted  to  another  brought 
a  suit  in  the  ecclesiastical  court  to  compel  a  celebration  of  the  marriage 
in  pursuance  of  such  contract;  but  this  branch  of  causes  is  now  cut  off 
entirely  by  the  act  for  preventing  clandestine  marriages,  26  Geo.  II.  c. 
33,  which  enacts  that  for  the  future  no  suit  shall  be  had  in  any  ecclesias- 
tical court  to  compel  a  celebration  of  marriage  in  facie  ecclesiae,  for  or 
because  of  &ny  contract  of  matrimony  whatsoever.  [94]  (3)  The  suit  for 
restitution  of  conjugal  rights  is  also  another  species  of  matrimonial 
causes,  which  is  brought  whenever  either  the  husband  or  wife  is  guilty 
of  the  injury  of  subtraction,  or  lives  separate  from  the  other  without  any 
sufficient  reason;  in  which  case  the  ecclesiastical  jurisdiction  will  com- 
pel them  to  come  together  again  if  either  party  be  weak  enough  to  de- 
sire it,  contrary  to  the  inclination  of  the  other. 

(4)  Divorces  also,  of  which  and  their  several  distinctions 
we  treated  at  large  in  a  former  book,  are  causes  thoroughly 
matrimonial,  and  cognizable  by  the  ecclesiastical  judge.^ 
If  it  becomes  improper,  through  some  supervenient  cause 
arising  ex  post  facto,  that  the  parties  should  live  together 
any  longer,  as  though  intolerable  cruelty,  adultery,  a  per- 
petual disease,  and  the  like,  this  unfitness  or  inability  for 
the  marriage  state  may  be  looked  upon  as  an  injury  to  the 
suffering  party,  and  for  this  the  ecclesiastical  law  admin- 
isters the  remedy  of  separation,  or  a  divorce  a  mensa  et 
thoro.^  But  if  the  cause  existed  previous  to  the  marriage, 
and  was  such  a  one  as  rendered  the  marriage  unlawful  ah 
initio,  as  consanguinity,  corporal  imbecility,  or  the  like,  in 
this  case  the  law  looks  upon  the  marriage  to  have  been 
always  null  and-  void,  being  contracted  in  fraudem  legis, 
and  decrees  not  only  a  separation  from  bed  and  board,  but 
a  vinculo  matrimonii^  itself.  (5)  The  last  species  of  matri- 
monial causes  is  a  consequence  drawn  from  one  of  the 
species  of  divorce,  that  a  mensa  ct  thoro,  which  is  the  suit 

4.  This  jurisdiction  is,  in  the  United  5.  From  bed  and  board. 

States,  usually  exercised  by  courts  of  6.  From    the   bonds   of  matrimony, 

equitable  jurisdiction,  such  as  circuit  See  Divorce,  considered  ante. 
courts,  district  courts,  etc. 


460  Of  the  Cognizance  [Book  III. 

for  alimony,  a  term  which  signifies  maintenance ;  which  suit 
the  wife,  in  case  of  separation,  may  have  against  her  hus- 
band if  he  neglects  or  refuses  to  make  her  an  allowance 
suitable  to  their  station  in  life.  This  is  an  injury  to  the 
wife,  and  the  court  Christian  will  redress  it  by  assigning 
her  a  competent  maintenance,  and  compelling  the  husband 
by  ecclesiastical  censures  to  pay  it.  But  no  alimony  will 
be  assigned  in  case  of  a  divorce  for  adultery  on  her  part; 
for  as  that  amounts  to  a  forfeiture  of  her  dower  after  his 
death,  it  is  also  a  sufficient  reason  why  she  should  not  be 
partaker  of  his  estate  when  living.  [95] 

3.  Testamentary  causes  are  the  only  remaining  species 
belonging  to  the  ecclesiastical  jurisdiction.^  This  juris- 
diction is  principally  exercised  with  us  in  the  consistory 
courts  of  every  diocesan  bishop,^  and  in  the  prerogative 
court  of  the  metropolitan  originally,  and  in  the  arches  court 
and  court  of  delegates  by  way  of  appeal.  [98]  It  is  divi- 
sible into  three  branches :  the  probate  of  wills,  the  granting 
of  administrations,  and  the  suing  for  legacies;  the  two 
former  of  which,  when  no  opposition  is  made,  are  granted 
merely  ex  officio  et  dehito  justUiae,^  and  are  then  the  object 
of  what  is  called  the  voluntary,  and  not  the  contentious 
jurisdiction.  But  when  a  cm-eat^  is  entered  against  proving 
the  will  or  granting  administration,  and  a  suit  thereupon 
follows  to  determine  either  the  validity  of  the  testament  or 
who  hath  a  right  to  administer,  this  claim  and  obstruction 
by  the  adverse  party  are  an  injury  to  the  party  entitled, 
and  as  such  are  remedied  by  the  sentence  of  the  spiritual 
court,  either  by  establishing  the  will  or  granting  the  admin- 
istration. Subtraction,  the  withholding  or  detaining  of 
legacies,  is  also  still  more  apparently  injurious,  by  depriv- 
ing the  legatees  of  that  right  with  which  the  laws  of  the 
land  and  the  will  of  the  deceased  have  invested  them;  and 
therefore,  as  a  consequential  part  of  testamentary  jurisdic- 
tion, the  spiritual  court  administers  redress  herein  by  com- 
pelling the  executor  to  pay  them.     But  in  this  last  case  the 

■     7.  This  jurisdiction  is,  in  the  United  8.  Out  of  duty  and   as   a  debt   to 

States,    usually    vested    in    what    are  justice, 

called  probate  courts,  orphans'  courts,  9.  Beware, 
surrogates'  courts,  or  county  courts. 


Chap.  VIL]  of  Private  Wrongs.  461 

courts  of  equity  exercise  a  concurrent  jurisdiction  with  the 
ecclesiastical  courts  as  incident  to  some  other  species  of 
relief  prayed  by  the  complainant :  as  to  compel  the  executor 
to  account  for  the  testator's  effects,  or  assent  to  the  legacy, 
or  the  like.  For  as  it  is  beneath  the  dignity  of  the  king's 
courts  to  be  merely  ancillary  to  other  inferior  jurisdictions, 
the  cause  when  once  brought  there  receives  there  also  its 
full  determination. 

The  proceedings  in  the  ecclesiastical  courts  are  regulated 
according  to  the  practice  of  the  civil  and  canon  laws,  or 
rather  according  to  a  mixture  of  both,  corrected  and  new 
modelled  by  their  own  particular  usages  and  the  inter- 
position of  the  courts  of  common  law.^  [100]  Their  ordi- 
nary course  of  proceeding  is:  first,  by  citation,  to  call  the 
party  injuring  before  them.  Then,  by  libel,  lihcllus,  a  little 
book,  or  by  articles  drawn  out  in  a  formal  allegation,  to  set 
forth  the  complainant's  ground  of  complaint.  To  this  suc- 
ceeds the  defendant's  answer  upon  oath,  when,  if  he  denies 
or  extenuates  the  charge,  they  proceed  to  proofs  by  wit- 
nesses examined,  and  their  depositions  taken  down  in  writ- 
ing by  an  officer  of  the  court.  If  the  defendant  has  any 
circumstances  to  offer  in  his  defence  he  must  also  propound 
them  in  what  is  called  his  defensive  allegation,  to  which 
he  is  entitled  in  his  turn  to  the  plaintiff's  answer  upon  oath, 
and  may  from  hence  proceed  to  proofs  as  well  as  his  antago- 
nist. When  all  the  pleadings  and  proofs  are  concluded, 
they  are  referred  to  the  consideration,  not  of  a  jury,  but  of 
a  single  judge,  who  takes  information  by  hearing  advocates 
on  both  sides,  and  thereupon  forms  his  interlocutory  de- 
cree or  definitive  sentence  at  his  own  discretion,  from 
which  there  generally  lies  an  appeal.^   [101] 

The  point  in  which  these  jurisdictions  are  the  most  defective  is  that 
of  enforcing  their  sentences  when  pronounced,  for  which  they  have  no 
other  process  but  that  of  excommunication,  which  is  described  to  be  two- 
fold, the  less,  and  the  greater  excommunication.  The  less  is  an  ecclesias- 
tical censure  excluding  the  party  from  the  participation  of  the  sacra- 
ments, the  greater   proceeds   farther,  and  excludes  him  not  only  from 

1.  See   local   statutes  and  books  of  2.  See  local   statutes   and  books  of 

practice.  practice. 


462  Of  the  Cognizance  [Book  III. 

these,  but  also  from  the  company  of  all  Christians.  With  us  by  the 
common  law  an  excommunicated  person  is  disabled  to  do  any  act  that 
is  required  to  be  done  by  one  that  is  probus  et  legalis  homo:i  [102]  He 
cannot  serve  upon  juries,  cannot  be  a  witness  in  any  court,  and,  which 
is  the  worst  of  all,  cannot  bring  an  action,  either  real  or  personal,  to 
recover  lauds  or  money  due  to  him.  Nor  is  this  the  whole,  for  if,  within 
forty  days  after  the  sentence  has  been  published  in  the- church,  the 
offender  does  not  submit  and  abide  by  the  sentence  of  the  spiritual  court, 
the  bishop  may  certify  such  contempt  to  the  king  in  Chancery.  Upon 
which  there  issues  out  a  writ  to  the  sheriff  of  the  county,  called,  from 
the  bishop's  certificates,  a  significavit,*  or,  from  its  effects,  a  writ  de 
excommunicato  capiendo,  5  and  the  sheriff  shall  thereupon  take  the  offender 
and  imprison  him  in  the  county  gaol  till  he  is  reconciled  to  the  church, 
and  such  reconciliation  certified  by  the  bishop,  under  which  another  writ, 
de  excommunicato  deliberando,^  Issues  out  of  Chancery  to  deliver  and  re- 
lease him. 

II.  I  am  next  to  consider  the  injuries  cognizable  in  the  court  military, 
or  court  of  chivalry  [103],  the  jurisdiction  of  which  is  declared  by  statute 
13  Ric.  II.  c.  2,  to  be  this:  "that  it  hath  cognizance  of  contracts  touch- 
ing deeds  of  arms  or  of  war  out  of  the  realm,  and  also  of  things  which 
touch  war  within  the  realm,  which  cannot  be  determined  or  discussed  by 
the  common  law,  together  with  other  usages  and  customs  to  the  same 
matters  appertaining."  So  that  wherever  the  common  law  can  give  re- 
dress this  court  hath  no  jurisdiction,  which  has  thrown  it  entirely  out  of 
use  as  to  the  matter  of  contracts,  all  such  being  usually  cognizable  in  the 
courts  of  Westminster  Hall,  if  not  directly,  at  least  by  fiction  of  law;  as 
if  a  contract  be  made  at  Gibraltar,  the  plaintiff  may  suppose  it  made  at 
Northampton;  for  the  locality,  or  place  of  making  it,  is  of  no  consequence 
with  regard  to  the  validity  of  the  contract. 

The  words  "  other  usages  and  customs "  support  the  claim  of  this 
court:  1.  To  give  relief  to  such  of  the  nobility  and  gentry  as  think  them- 
selves aggrieved  in  matters  of  honor,  and  2.  To  keep  up  the  distinction 
of  degrees  and  quality.  [104]  Whence  it  follows  that  the  civil  jurisdic- 
tion of  this  court  of  chivalry  is  principally  in  two  points:  the  redressing 
injuries  of  honor,  and  correcting  encroachments  in  matters  of  coat- 
armor,  precedency,  and  other  distinctions  of  families.     [Obsolete.] 

III.  Injuries  cognizable  by  the  courts  maritime,  or  ad- 
miralty courts.^  [106]  These  courts  liave  jurisdiction  and 
power  to  try  and  determine  all  maritime  causes,  or  such 

3.  Good  and  lawful  man.  7.  In  tlie  United  States  this  juris- 

4.  He  signified,  diction  is  vested  in  tiie  district  court* 

5.  For  taking  one  excommunicated,      of  the  United  State*. 

6.  For    liberating   one    excopimuni- 
cated. 


Ohap.  VII.]  OF  Private  Wkoxgs.  4G3 

injuries  wliicli,  though  they  are  in  their  nature  of  common 
law  cognizance,  yet,  being  committed  on  the  high  seas,  out 
of  the  reach  of  our  ordinary  courts  of  justice,  are  therefore 
to  be  remedied  in  a  peculiar  court  of  their  own.  All  ad- 
miralty causes  must  be  therefore  causes  arising  wholly  upon 
the  sea,  and  not  within  the  precincts  of  any  country.  If 
part  of  any  contract  or  other  cause  of  action  doth  arise 
upon  the  sea  and  part  upon  the  land,  the  common  law  ex- 
cludes the  admiralty  court  from  its  jurisdiction;  for  part 
belonging  properly  to  one  cognizance  and  part  to  another, 
the  common  or  general  law  takes  place  of  the  particular. 
Therefore,  though  pure  maritime  acquisitions,  which  are 
earned  and  become  due  on  the  high  seas,  as  seamen's 
wages,  are  one  proper  object  of  the  admiralty  jurisdiction, 
even  though  the  contract  for  them  be  made  upon  land,  yet, 
in  general,  if  there  be  a  contract  made  in  England  and  to  be 
executed  upon  the  seas, —  as  a  charter-party  or  covenant 
that  a  ship  shall  sail  to  Jamaica,  or  shall  be  in  such  a  lati- 
tude by  such  a  day;  or  a  contract  made  upon  the  sea  to  be 
performed  in  England,  as  a  bond  made  on  shipboard  to  pay 
money  in  London  or  the  like, —  these  kinds  of  mixed  con- 
tracts belong  not  to  the  admiralty  jurisdiction,  but  to  the 
courts  of  common  law.^   [107] 

And  also,  as  the  courts  of  common  law  have  obtained  a 
concurrent  jurisdiction  with  the  court  of  chivalry  with  re- 
gard to  foreign  contracts,  by  supposing  them  made  in 
England,  so  it  is  no  uncommon  thing  for  a  plaintiff  to  feign 
that  a  contract,  really  made  at  sea,  was  made  at  the  Eoyal 
Exchange,  or  other  inland  place,  in  order  to  draw  the  cog- 
nizance of  the  suit  from  the  courts  of  admiralty  to  those  of 
Westminster  Hall.  • 

Where  the  admiral's  court  hath  not  original  jurisdiction 
of  the  cause,  though  there  should  arise  in  it  a  question  that 
is  proper  for  the  cognizance  of  that  court,  yet  that  doth  not 
alter  nor  take  away  the  exclusive  jurisdiction  of  the  com- 
mon law.  [108]  And  so  vice  versa,  if  it  hath  jurisdiction 
,  of  the  original,  it  hath  also  jurisdiction  of  all  consequen- 

8.  See,  generally.  Benedict's  Admir- 
alty   (4tli  Ed.,  1910). 


4G4  Of  the  Cognizance  [Book  III. 

tial  questions,  though  properly  determinable  at  common 
law.  In  case  of  prizes  in  time  of  war  between  our  own 
nation  and  another,  w^hich  are  taken  at  sea  and  brought 
into  our  ports,  the  courts  of  admiralty  have  an  undis- 
turbed and  exclusive  jurisdiction  to  determine  the  same 
according  to  the  law  of  nations.®* 

The  proceedings  of  the  courts  of  admiralty  bear  much 
resemblance  to  those  of  the  civil  law,^  but  are  not  entirely 
founded  thereon,  and  they  likewise  adopt  and  make  use  of 
other  laws  as  occasion  requires,  such  as  the  Rhodian  laws 
and  the  laws  of  Oleron.  The  first  process  in  these  courts  is 
frequently  by  arrest  of  the  defendant's  person,  and  they 
also  take  recognizances  or  stipulations  of  certain  fidejussors 
in  the  natrue  of  bail,  and  in  case  of  default  may  imprison 
both  them  and  their  principal.  [109]  They  may  also  fine 
and  imprison  for  a  contempt  in  the  face  of  the  court.  And 
all  this  is  supported  by  immemorial  usage  grounded  on  the 
necessity  of  supporting  a  jurisdiction  so  extensive,  though 
opposite  to  the  usual  doctrines  of  the  common  law;  these 
being  no  courts  of  record,  because  in  general  their  process 
is  much  conformed  to  that  of  the  civil  law. 

IV.  Such  injuries  as  are  cognizable  by  the  courts  of  the 
common  law.  And  herein  I  shall  for  the  present  only  re- 
mark that  all  possible  injuries  whatsoever  that  did  not  fall 
within  the  exclusive  cognizance  of  either  the  ecclesiastical, 
military  [equitable],  or  maritime  tribunals  are  for  that 
very  reason  within  the  cognizance  of  the  common-law  courts 
of  justice.  For  it  is  a  settled  and  invariable  principle  in 
the  laws  of  England  that  every  right  when  withheld  must 
liave  a  remedy,  and  every  injury  its  proper  redress.  But 
before  we  conclude  the  present  chapter  I  shall  just  mention 
two  species  of  injuries  which  will  properly  fall  now  within 
our  immediate  consideration,  and  which  are,  either  when 
justice  is  delayed  by  an  inferior  court  that  has  proper  cog- 
nizance of  the  cause,  or  when  such  inferior  court  takes  upon 
itself  to  examine  a  cause  and  decide  the  merits  without  a 
legal  authority. 

8a.  This  jurisdiction,  in  the  United  9.  See,  generally,  Benedict's  Admir- 

States,  is  vested  in  the  United  States  alty  (4th  Ed.),  an  excellent  work  of 
District  Courts.  very  moderate  size. 


Cjiap.  VII.]  OF  Private  Wbongs.  465 

1.  The  first  of  these  injuries,  refusal  or  neglect  of  justice, 
is  remedied  either  by  writ  of  procedendo  or  of  mandamus. 
A  writ  of  procedendo  ad  judicium  ^  issues  out  of  the  Court 
of  Chancery,  where  judges  of  any  subordinate  court  do 
delay  the  parties,  for  that  they  will  not  give  judgment, 
either  on  the  one  side  or  the  other,  when  they  ought  so  to 
do.  In  this  case  a  writ  of  procedendo  shall  be  awarded, 
commanding  them  in  the  king's  name  to  proceed  to  judg- 
ment, but  without  specifying  any  particular  judgment,  for 
that  (if  erroneous)  may  be  set  aside  in  the  course  of  appeal, 
or  by  writ  of  error  or  false  judgment;  and  upon  further 
neglect  or  refusal,  the  judges  of  the  inferior  court  may  be 
punished  for  their  contempt,  by  writ  of  attachment  return- 
able in  the  King's  Bench  or  Common  Pleas.   [110] 

A  writ  of  mandamus  is  in  general  a  command  issuing  in 
the  king's  name  from  the  Court  of  King's  Bench,  and  di- 
rected to  any  person,  corporation,  or  inferior  court  of  judi- 
cature within  the  king's  dominions,  requiring  them  to  do 
some  particular  thing  therein  specified  which  appertains  to 
their  office  and  duty,  and  which  the  Court  of  King's  Bench 
has  previously  determined,  or  at  least  supposes,  to  be  con- 
sonant to  right  and  justice.  It  is  a  high  prerogative  writ, 
of  a  most  extensively  remedial  nature,  and  may  be  issued 
in  some  cases  where  the  injured  party  has  also  another  more 
tedious  method  of  redress,  as  in  the  case  of  admission  or 
restitution  of  an  office;  but  it  issues  in  all  cases  where  the 
party  hath  a  right  to  have  anything  done,  and  hath  no  other 
specific  means  of  compelling  its  performance.^     At  present 

1.  For  proceeding  to  judgment.  remedy   with  wliich   equity  lias  noth- 
In  Illinois   a  certified   copy  of   the      ing  to  do.   2  Spelling's  Extraor.  Relief, 

order  of  the  upper  court  affirming  or  §  1163;  Gay  v.  Gilmore,  76  Gfo.  725. 

dismissing   an   appeal,   when   filed   in  This    writ    is    used   at   the   present 

^le  trial  court,  operates  as  a  proce-  day,  as  at  first,  to  give  relief  where 

dendo.   Smith  v.  Stevens,  133  111.  183;  ordinary  legal  procedure  by  reason  of 

Eev.  Stat.  111.,  ch.  110,  sec.  83.     See  its  defects  gives  none.     2  Spelling,   § 

Tidd's  Practice,  Procedendo;  see  Man-  1165.     The   jurisdiction   of   courts   in 

damns.  administering  this  remedy  as  well  as 

2.  Rex  V.  Barker.  Burr.,  1267,  per  the  manner  of  its  employment  have 
Lord  Mansfield;  2  Spelling's  Extraor-  been  greatly  modified  in  many  states 
dinary  Relief,  §  1383;  High's  Extraor.  by  statute.  But  the  well-established 
Legal  Rfm.,  §  1      Tt  is  strictly  a  legal  rules   of   the   common   law   governing 

30 


466  Of  the  Cognizance  [Book  II  I. 

we  are  particularly  to  remark  that  it  issues  to  the  judgog 
of  any  inferior  court  commanding  them  to  do  justice  ac- 
cording to  the  powers  of  their  office,  whenever  the  same  is 
delayed.  A  mandamus  may  therefore  be  had  to  the  courts 
of  the  City  of  London  to  enter  up  judgment,  to  the  spiritual 
courts  to  grant  an  administration,  to  swear  a  churchwar- 
den, and  the  like.  [Ill]  This  writ  is  grounded  on  a  sug- 
gestion, by  the  oath  of  the  party  injured,  of  his  own  right 
and  the  denial  of  justice  below,  whereupon  a  rule  is  made 
(except  in  some  general  cases,  where  the  probable  ground 
is  manifest)  directing  the  party  complained  of  to  show 
cause  why  a  writ  of  mandamus  should  not  issue;  and  if  he 
shows  no  sufficient  cause,  the  writ  itself  is  issued,  at  first  in 
the  alternative,  either  to  do  thus  or  signify  some  reason  to 
the  contrary,  to  which  a  return  or  answer  must  be  made  at 
a  certain  day.  And  if  the  inferior  judge,  or  other  person  to 
whom  the  writ  is  directed,  returns  or  signifies  an  insufficient 
reason,  then  there  issues  in  the  second  place  a  peremptory 
mandamus  to  do  the  thing  absolutely,  to  which  no  other 
return  will  be  admitted  but  a  certificate  of  perfect  obedi- 
ence and  due  execution  of  the  writ."^  If  the  inferior  judge 
or  other  person  makes  no  return  or  fails  in  his  respect  and 
obedience,  he  is  punishable  for  his  contempt  by  attachment. 
But  if  he  at  the  first  returns  a  sufficient  cause,  although  it 
should  be  false  in  fact,  the  Court  of  King's  Bench  will  not 
try  the  truth  of  the  fact  upon  affidavits,  but  will  for  the 
present  believe  him  and  proceed  no  farther  on  the  man- 
damus. But  then  the  party  injured  may  have  an  action 
against  him  for  his  false  return,  and  (if  found  to  be  false  by 
the  jury)  shall  recover  damages  equivalent  to  the  injury 

the  jurisdiction  are  generally  adhered  jurisdiction.      2     Spelling's    Extraor. 

to  in  all  cases  where  such  rules  are  Relief,  §  1367. 

applicable.  Relief  will  be  refused  when  3.  The   practice  in   this   proceeding 

no  other  adequate  remedy  is  provided  so    far    as    we   have    seen    it    in    this* 

by  law.     2  Spelling's  Extraor.  Relief,  country,  very  much  resembles  that  at 

§    1366.     In   some   of   the    states   the  common  law,  though  as  a  rule  simpli- 

jurisdiction    is   occasionally   exercised  fied.     See  local  works  on  Practice.  S(?« 

by  courts  of  last  resort,  but  usually  generally,  2  Spelling's  Ex.  Rel.  titie 

by    courts    of    general    common    law  Afandamus;      High,     Extraor.     Ivegal 

Remedies. 


Chap.  VIL] 


OF  Private  Wrongs. 


467 


sustained,  together  with  a  peremptory  mandamus  to  the  de- 
fendant to  do  his  duty. 

2.  A  prohibition  is  a  writ  issuing  properly  out  of  the 
Court  of  King's  Bench,  being  the  king's  prerogative  writ; 
but  for  the  furtherance  of  justice  it  may  now  also  be  had  in 
some  cases  out  of  the  Court  of  Chancery,  Common  Pleas,  or 
Exchequer,  directed  to  the  judge  and  parties  of  a  suit  in  any 
inferor  court  [or  tribunal],  commanding  them  to  cease  from 
the  prosecution  thereof,  upon  a  suggestion  that  either  the 
cause  originally,  or  some  collateral  matter  arising  therein, 
does  not  belong  to  that  jurisdiction,  but  to  the  cognizance 
of  some  other  court.*  [112]  And  if  either  the  judge  or  the 
party  shall  proceed  after  such  prohibition,  an  attachment 
may  be  had  against  them  to  punish  them  for  the  contempt, 
at  the  discretion  of  the  court  that  awarded  it,  and  an  ac- 
tion will  lie  against  them  to  repair  the  party  injured  in 
damages.  [113] 

A  short  summary  of  the  method  of  proceeding  upon  pro- 
hibitions^ is  as  follows:   The  party  aggrieved  in  the  court 


4.  It  is  an  extraordinary '  writ  be- 
cause it  issues  only  when- the  party 
seeking  is  without  other  adequate 
means  of  redress  for  the  wrong  about 
to  be  inflicted  by  the  act  of  the  in- 
ferior tribunal.  It  lies  only,  however, 
where  there  is  about  to  be  an  excess 
or  jurisdiction  as  to  person  or  sub- 
ject-matter or  in  the  enforcement  of 
rulings  in  a  manner  or  by  means  not 
intrusted  to  the  judgment  or  discre- 
tion of  the  acting  tribunal.  2  Spell- 
ing's Extraor.  Rel.,  §  1716  and  cases 
cited. 

5.  So  far  as  we  have  observed  there 
has  been  little  legislation  upon  the 
subject  of  prohibition.  In  Ilinois  the 
writ  of  prohibition  is  governed  by 
chapter  7  of  the  Revised  Statutes  on 
Amendments  and  Jeofails  (see  ch.  7, 
sec.  9),  and  the  plaintiff  obtaining 
judgment  recovers  his  costs;  and 
there   is,   so   far   as   we   can   find,   no 


other  legislation  in  Ilinois  on  the  sub- 
ject. We  apprehend  that,  in  general, 
upon  making  a  sufficient  prima  facie 
showing  by  petition  or  affidavit,  a  rule 
on  the  inferior  tribunal  to  show  cause 
why  the  writ  should  not  be  issued,  is 
the  first  step;  this  rule  will,  mean- 
while, have  the  effect  of  a  prohibition 
until  discharged.  Upon  the  hearing 
of  this  -rule  the  writ  of  prohibition 
will  be  denied  or  granted.  See,  gen- 
erally. 2  Spelling's  Extraor.  Relief, 
Part  2,  ch.  16,  sec.  1757  et  seq.;  Com. 
Dig.  tit.  Prohibition;  Bac.  Ab.  tit. 
Prohibition;  2  Saund.  index,  tit.  Pro- 
hibition; and  see  an  excellent  illus- 
tration of  the  nature  and  object  of 
this  proceeding,  given  by  the  court  in 
2  Hen.  Bla.  553.  Also,  consult  the 
local  statutes  and  books  on  practice. 
In  most  works  on  practice,  however, 
the  name  of  the  writ  is  not  even  men- 
tioned.     The   student   who   wishes   to 


468  Of  the  Cognizance  [Book  III. 

below  applies  to  the  superior  court,  setting  forth  in  a  sug- 
gestion upon  record  the  nature  and  cause  of  his  complaint 
in  being  drawn  od  allud  examen^  by  a  jurisdiction  or  man- 
ner of  process  disallowed  by  the  laws  of  the  kingdom;  upon 
which,  if  the  matter  alleged  appears  to  the  court  to  be  suf- 
ficient, the  writ  of  prohibition  immediately  issues,  com- 
manding the  judge  not  to  hold,  and  the  party  not  to  prose- 
cute, the  plea.  But  sometimes  the  point  may  be  too  nice 
and  doubtfiil  to  be  decided  merely  upon  a  motion,  and  then, 
for  the  more  solemn  determination  of  the  question,  the 
party  applying  for  the  prohibition  is  directed  by  the  court 
to  declare  a  prohibition,  that  is,  to  prosecute  an  action  by 
filing  a  declaration  against  the  other  upon  a  supposition  or 
fiction  (which  is  not  traversable)  that  he  has  proceeded  in 
the  suit  below,  notwithstanding  the  writ  of  prohibition. 
And  if,  upon  demurrer  and  argument,  the  court  shall  finally 
be  of  opinion  that  the  matter  suggested  is  a  good  and 
sufficient  ground  of  prohibition  in  point  of  law,  then  judg- 
ment with  nominal  damages  shall  be  given  for  the  party 
complaining,  and  the  defendant  and  also  the  inferior  court 
shall  be  prohibited  from  proceeding  any  farther.  [114]  On 
the  other  hand,  if  the  superior  court  shall  think  it  no  com- 
petent ground  for  restraining  the  inferior  jurisdiction,  then 
judgment  shall  be  given  against  him  who  applied  for  the 
prohibition  in  the  court  above,  and  a  writ  of  consultation 
shall  be  awarded, —  so  called  because,  upon  deliberation 
and  consultation  had,  the  judges  find  the  prohibition  to  bo 
ill-founded,  and  therefore  by  this  w^rit  they  return  the 
cause  to  its  original  jurisdiction,  to  be  there  determined  in 
the  inferior  court.  And  even  in  ordinary  cases  the  writ  of 
prohibition  is  not  absolutely  final  and  conclusive.  For 
though  the  ground  be  a  proper  one  in  point  of  law  for  grant- 
ing the  prohibition,  yet  if  the  fact  that  give  rise  to  it  be 
afterwards  falsified  the  cause  shall  be  remanded  to  the 
prior  jurisdiction. 

know  the  old  practice  on  this  writ  is      common   law   precedents  auw    .xactice 
referred   to   6  Wentworth's  Pleading,      will  be  found  stated  at  length, 
pp.  242  304  (Dublin,  1799),  where  the         6.  To  another  examination. 


CiiAP.  VIII.]  Weongs  and  Remedies.  469 


CHAPTER  VIII. 

OF    WRONGS    AND    THEIR    REMEDIES,    RESPECTING    THE    RIGHTS    OF 

PERSONS. 

Since  all  wrongs  may  be  considered  as  merely  a  privation 
of  right,  the  plain  natural  remedy  for  every  species  of 
wrong  is  the  being  put  in  possession  of  that  right  whereof 
the  party  injured  is  deprived.  [116]  This  may  either  be 
effected  by  a  specific  delivery  or  restoration  of  the  subject- 
matter  in  dispute  to  the  legal  owner,  as  when  lands,  or  per- 
sonal chattels  are  unjustly  withheld  or  invaded;  or,  where 
that  is  not  a  possible,  or  at  least  not  an  adequate  remedy, 
by  making  the  sufferer  a  pecuniary  satisfaction  in  damages, 
as  in  case  of  assault,  breach  of  contract,  &c.,  to  which  dam- 
ages the  party  injured  has  acquired  an  incomplete  or  in- 
choate right  the  instant  he  receives  the  injury,  though 
such  right  be  not  fully  ascertained  till  they  are  assessed 
by  the  intervention  of  the  law.  The  instruments  whereby 
this  remedy  is  obtained  are  a  diversity  of  suits  and  actions, 
which  are  defined  by  the  mirror  to  be  "  the  lawful  demand 
of  one's  right;  "  or,  as  Bracton  and  Fleta  express  it,  in  the 
words  of  Justinian,  jus  .persequendi  in  judicio  quod  alicui 
dehetur.^ 

With  us  in  England  the  several  suits,  or  remedial  instru- 
ments of  justice,  are  from  the  subject  of  them  distinguished 
into  three  kinds:  actions,  personal,  real,  and  mixed.   [117] 

Personal  actions  are  such  whereby  a  man  claims  a  debt 
or  personal  duty,  or  damages  in  lieu  thereof;  and,  likewise, 
whereby  a  man  claims  a  satisfaction  in  damages  for  some 
injury  done  to  his  person  or  property.  The  former  are  said 
to  be  founded  on  contracts,^  the  latter  upon  torts  ^  or 
wrongs.  Of  the  former  nature  are  all  actions  upon  debt 
or  promises;  of  the  latter  all  actions  for  trespass,  nuisances, 
assaults,  defamatory  words,  and  the  like. 

Real  actions*  (or,  as  they  are  called  in  the  mirror,  feodal 

1.  The  right  of  prosecuting  in  judg-  3.  Ex  delicto. 

Bient  what  is  due  to  every  one.  4.  Real   actions,  properly   so-called, 

2.  Ex  contractu.  are   obsolete. 


470  Wrongs  and  Remedies.  [Book  III. 

actions),  which  concern  real  property  only,  are  such 
whereby  the  plaintiff,  here  called  tHe  demandant,  claims 
title  to  have  any  lands  or  tenements,  rents,  commons,  or 
other  hereditaments,  in  fee-simple,  fee-tail,  or  for  term  of 
life.  [118]  By  tliese  actions  formerly  all  disputes  con- 
cerning real  estates  were  decided;  but  they  are  now  pretty 
generally  laid  aside  in  practice,  upon  account  of  the  great 
nicety  required  in  their  management,  and  the  inconvenient 
length  of  their  process, —  a  much  more  expeditious  method 
of  trying  titles  being  since  introduced  b}''  other  actions  per- 
sonal and  mixed. 

Mixed  actions  °  are  suits  partaking  of  the  nature  of  the 
other  two,  wherein  some  real  property  is  demanded,  and 
also  personal  damages  for  a  wrong  sustained;  as,  for  in- 
stance, an  action  of  waste,  which  is  brought  by  him  who 
hath  the  inheritance  in  remainder  or  reversion  against  the 
tenant  for  life  who  hath  committed  waste  therein,  to  re- 
cover not  only  the  land  wasted,  Avhich  would  make  it  merely 
a  7'cal  action,  but  also  treble  damages,  in  pursuance  of  the 
statute  of  Gloucester,  which  is  a  personal  recompense;  and 
so  both,  being  joined  together,  denominate  it  a  mixed  action. 

All  civil  injuries  are  of  two  kinds:  the  one  without  force 
or  violence,  as  slander  or  breach  of  contract;  the  other 
coupled  with  force  and  violence,  as  batteries  or  false  im- 
prisonment. And  this  distinction  of  private  wrongs  into 
injuries  icith  and  without  force  we  shall  find  to  run  through 
all  the  variety  of  which  we  are  now  to  treat.^  [119]  As  we 
divide  all  rights  into  those  of  persons  and  those  of  things^ 
so  we  must  make  the  same  general  distribution  of  injuries 
into  such  as  affect  the  rights  of  persons  and  such  as  affect 
the  rights  of  property. 

I.  As  to  injuries  which  affect  the  personal  security  of 
individuals,  they  are  either  injuries  against  their  lives,  their 
limbs,  their  bodies,  their  health,  or  their  reputations." 

5.  In  states  where  the  common  law      ute,    is   still    retained.     This   subject 
forms  of  actions  have  been  retained;      will  be  considered  further  on. 
as  in  Illinois  and  Michigan,  the  mixed  6.  This  distinction  still  prevails, 

action  of  ejectment,  modified  by  stat-  7.  See    the    following    topics    more 

fully  discussed  in  vol.  2  of  this  series. 


Cjiap.  VIIL]  Wrongs  and  Remedies.  471 

1.  Injuries  affecting  the  life  of  man  do  not  fall  under  our 
present  contemplation,*  being  one  of  the  most  atrocious 
species  of  crimes,  the  subject  of  the  next  book  of  our  Com- 
mentaries. 

2,  3.  Injuries  affecting  the  limbs  or  bodies  of  individuals 
may  be  committed:  1.  By  threats  and  menaces  of  bodily 
hurt,  through  fear  of  which  a  man 's  business  is  interrupted. 
[120]  A  menace  alone,  without  a  consequent  inconven- 
ience, makes  not  the  injury;  but  to  complete  the  wrong 
there  must  be  both  of  them  together.  The  remedy  for  this 
is  in  pecuniary  damages,  to  be  recovered  by  action  of  tres- 
pass vi  et  armis,^  this  being  an  inchoate,  though  not  an  ab- 
solute violence.  2.  By  assault,  which  is  an  attempt  or  offer 
to  beat  another  without  touching  him,  as  if  one  lifts  up 
his  cane  or  his  fist  in  a  threatening  manner  at  another,  or 
strikes  at  him  but  misses  him,  this  is  an  assault.^  This  also 
is  an  .inchoate  violence,  amounting  considerably  higher 
than  bare  threats;  and  therefore,  though  no  actual  suffering 
is  proved,  yet  the  party  injured  may  have  redress  by  action 
of  trespass  vi  et  armis,  wherein  he  shall  recover  damages 
as  a  compensation  for  the  injury.  3.  By  battery,  which  is 
the  unlawful  beating  of  another.  The  least  touching  of 
another's  person  wilfully  or  in  anger  is  a  battery.  But 
battery  is  in  some  cases  justifiable  or  lawful,  as  where  one 
who  hath  authority,  a  parent  or  master,  gives  moderate 
correction  to  his  child,  his  scholar,  or  his  apprentice.  So, 
also,  on  the  principle  of  self-defence;  for  if  one  strikes  mo 

8.  At  common  law  no  civil  action  most,  if  not  all,  the  states.     See  Hals 

lay  for  causing  the  death  of  a  human  on   Torts,    186-189;    Cooley   on  ,  Torts 

bsing.      Cooley    on    Torts     (Students'  (Students'    Ed.),    271-288    and    cases 

Ed.),   270;    Hale  on   Torts,   184.     To  cited. 

remedy  this  defect  of  the  common  law  9,  With  force  and  arms, 

the     British     parliament,     in     1846,  1.  Every    assault   and    assault   and 

passed    an    act   commonly   known    as  battery  are  at  once  both  a  civil  wrong 

Lord  Campbell's  act,  giving  a  remedy  and  a  crime  against  the  state.     The 

in  cases  of  death  caused  by  wrongful  civil  wrong  is  redressed  by  the  action 

act,  neglect  on  default  in  such  cases  of   trespass;    the  crime  is   an  offence 

as    would     (had    death    not    ensued)  against  the  state  and  will  be  consid- 

have    entitled    the    party    injured    to  ered    in   Book    4,   where   assault   and 

maintain     an     action     for     damages,  assault   and   battery    are   more   fully 

Fiinilar  statutes  have  been  passed  in  considered. 


472  Wrongs  and  Remedies.  [Book  III. 

first,  or  even  only  assaults  me,  I  may  strike  in  my  own 
defence,  and  if  sued  for  it  may  plead  son  assault  demesne,^ 
or  that  it  was  the  plaintiff's  own  original  assault  that  occa- 
sioned it.  So,  likewise,  in  defence  of  my  goods  or  posses- 
sion, if  a  man  endeavors  to  deprive  me  of  them  I  may  justify 
laying  hands  upon  him  to  prevent  him;  and  in  case  he  per- 
sists with  violence,  I  may  proceed  to  beat  him  away.  [121] 
Thus,  too,  in  the  exercise  of  an  office,  as  that  of  church- 
warden or  beadle,  a  man  may  lay  hands  upon  another  to 
turn  him  out  of  church,  and  prevent  his  disturbing  the  con- 
gregation. And  if  sued  for  this  or  the  like  battery,  he  may 
set  forth  the  whole  case,  and  plead  that  he  laid  hands  upon 
liim  gently,  molliter  manus  imposuit,  for  this  purpose.  On 
account  of  these  causes  of  justification,  battery  is  defined  to 
be  the  unlaicful  beating  of  another;  for  which  the  remedy 
is,  as  for  assault,  by  action  of  trespass  vi  et  armis,  wherein 
the  jury  will  give  adequate  damages.  4.  By  wounding, 
which  consists  in  giving  another  some  dangerous  hurt,  and 
is  only  an  aggravated  species  of  battery.  5.  By  mayhem, 
which  is  an  injury  still  more  atrocious,  and  consists  in  vio- 
lently depriving  another  of  the  use  of  a  member  proper  for 
his  defence  in  fight.  This  is  a  battery,  attended  with  this 
aggravating  circumstance,  that  thereby  the  party  injured 
is  forever  disabled  from  making  so  good  a  defence  against 
future  external  injuries  as  he  otherwise  might  have  done. 
Among  these  defensives  members  are  reckoned  not  on! 3" 
arms  and  legs,  but  a  finger,  an  eye,  and  a  for^-tooth,  and 
also  some  others.  But  the  loss  of  one  of  the  jaw-teeth, 
the  ear,  or  the  nose,  is  no  mayhem  at  common  law,  as  they 
can  be  of  no  use  in  fighting.  The  same  remedial  action  of 
trespass  vi  et  armis  lies  also  to  recover  damages  for  this 
injury, —  an  injury  which  (when  wilful)  no  motive  can  jus- 
tify but  necessary  self-preservation.^     If  the  ear  be  cut  off, 

2.  ?Iis  own  first  assault.  post,   chapter   12,  also  vol.  2  of  thin 

3.  The  action  of  trespass  is  still  in  series.  In  those  states  where  the 
force  in  those  states  where  common  common  law  forms  of  actions  have 
law  pleading  has  been  preserved  as  been  abolished  by  statute,  the  injury 
in  Micliipan  and  Illinois.  It  lies  for  of  trespass  still  exists  as  described 
tht*  rcovery  of  damages  for  a  direct  in  the  text,  but  is  redressed  by  an- 
injury    accompanied    by    force.      See  other  form  of  proceeding.     Otherwise, 


Chap.  VIII.]  Wrongs  and  Remedies.  -         473 

treble  damages  are  given  by  statute  37  Hen.  VIII.  c.  6, 
though  this  is  not  mayhem  at  common  law.  And  here  I 
must  observe  that  for  these  four  last  injuries,  assault,  bat- 
tery, wounding,  and  mayhem,  an  indictment  may  be  brought 
as  well  as  an  action.* 

4.  Injuries  affecting  a  man's  health  are  where,  by  any 
unwholesome  practices  of  another,  a  man  sustains  any  ap- 
parent damage  in  his  vigor  or  constitution.  [122]  As  by 
selling  him  bad  provisions  or  wine,  by  the  exercise  of  a 
noisome  trade,  which  infects  the  air  in  his  neighborhood; 
or  by  the  neglect  or  unskilful  management  of  his  physician, 
surgeon,  or  apothecary.  These  are  wrongs  or  injuries  un- 
accompanied by  force,  for  which  there  is  a  remedy  in  dam- 
ages by  a  special  action  of  trespass  upon  the  case.  This 
action  of  trespass,  or  transgression  on  the  case,  is  an  uni- 
versal remedy  given  for  all  personal  wrongs  and  injuries 
without  force,  so  called  because  the  plaintiff's  whole  case 
or  cause  of  complaint,  is  set  forth  at  length  in  the  original 
writ.  For  though  in  general  there  are  methods  prescribed 
and  forms  of  actions  previously  settled  for  redressing  those 
wrongs  which  most  usually  occur,  and  in  which  the  very 
act  itself  is  immediately  prejudicial  or  injurious  to  the 
plaintiff's  person  or  property,  as  battery,  non-payment  of 
debts,  detaining  one's  goods,  or  the  like, "yet  where  any 
special  consequential  damage  arises  which  could  not  be 
foreseen  and  provided  for  in  the  ordinary  course  of  justice^ 
the  party  injured  is  allowed,  both  by  common  law  and  the 
statute  of  Westm.  2,  c.  24,  to  bring  a  special  action  on  his 
own  case  by  a  writ  formed  according  to  the  peculiar  cir- 
cumstances of  his  own  particular  grievance.  [123]  For 
wherever  the  common  law  gives  a  right  or  prohibits  an  in- 
jury, it  also  gives  a  remedy  by  action,  and,  therefore^ 
wherever  a  new  injury  is  done,  a  new  method  of  remedy 
must  be  pursued.  And  it  is  a  settled  distinction  that  where 
an  act  is  done  which  is  in  itself  an  immediate  injury  to  an- 
other's person  or  property,  there  the  remedy  is  usually  by 
an  action  of  trespass  vi  et  armis;  but  where  there  is  no  act 

the  same  rules  of  law  apply  in  full  4.  See  Book  4. 

force.  -      . 


474  "Wkongs  and  Eemedies.  [Book  TIL 

done,  but  only  a  culpable  omission,  or  where  the  act  is  not 
immediately  injurious,  but  only  by  consequence  and  col- 
laterally, there  no  action  of  trespass  vi  et  armis  will  lie, 
but  an  action  on  the  special  case,  for  the  damages  conse- 
quent on  such  omission  or  act.'^ 

5.  Lastly,  injuries  affecting  a  man's  reputation  or  good 
name  are,  first,  by  malicious,  scandalous,  and  slanderous 
tcords,  tending  to  his  damage  and  derogation.  As  :f  a  man 
maliciously  and  falsely  utter  any  slander  or  false  tale  of 
another,  which  may  either  endanger  him  in  law,  by  im- 
peaching him  of  some  heinous  crime,  as  to  say  that  a  man 
liath  poisoned  another,  or  is  perjured,  or  which  may  exclude 
him  from  society,  as  to  charge  him  with  having  an  infec- 
tious disease,  or  which  may  impair  or  hurt  his  trade  or 
livelihood,  as  to  call  a  tradesman  a  bankrupt,  a  physician  a 
quack,  or  a  lawyer  a  knave. 

Words  spoken  in  derogatio.i  of  a  peer,  a  judge,  or  other  officer  of  the 
realm,  which  are  called  scandalum  magnatumfi  are  held  to  be  still  more 
heinous;  and  though  they  be  such  as  would  not  be  actionable  in  the  case 
of  a  common  person,  yet  when  spoken  in  disgrace  of  such  high  and  re- 
spectable characters,  they  amount  to  an  atrocious  injury,  which  is  re- 
dressed by  an  action  on  the  case  founded  on  many  ancient  statutes,  as 
well  on  behalf  of  the  crown  to  inflict  the  punishment  of  imprisonment 
on  the  slanderer,  as  on  behalf  of  the  party  to  recover  damages  for  the 
Injury  sustained.  [124]    [Not  applicable  to  this  country.] 

Words  also  tending  to  scandalize  a  magistrate  or  person 
in  a  public  trust  are  reputed  more  highly  injurious  than 
when  spoken  of  a  private  man.  It  is  said  that  formerly 
no  actions  were  brought  for  words  unless  the  slander  was 
such  as  (if  true)  would  endanger  the  life  of  the  object  of 
it.  But  it  is  now  held  that  for  scandalous  words  of  the 
several  species  before  mentioned  (that  may  endanger  a  man 
by  subjecting  him  to  the  penalties  of  the  lav,-,  may  exclude 
him  from  society,  may  impair  his  trade,  or  may  affect  a 
peer  of  the  realm,  a  magistrate,  or  one  in  public  trust),  an 

5.  This  action  is  still  in  use  in  for  an  indirect  injury  or  one  not  ac- 
:Mic(iigan,  Illinois  and  other  states.  companicd  by  force.  See  vol.  2  of 
It  lies,  as  stated,  to  recover  damages      this   series. 

6.  Gross  scandal. 


Chap.  VIII.]  Wrongs  and  Remedies.         "  475 

action  on  the  case  be  had  without  proving  any  particular 
damage  to  have  happened,  but  merely  upon  the  probability 
that  it  might  happen."^  But  with  regard  to  words  that  do 
not  thus  apparently,  and  upon  the  face  of  them,  import  such 
defamation  as  will  of  course  be  injurious,  it  is  necessary 
that  the  plaintiff  should  aver  some  particular  damage  to 
have  happened  which  is  called  laying  his  action  with  a  per 
quod.  As  if  I  say  that  such  a  clergyman  is  a  bastard,  he 
cannot  for  this  bring,  any  action  against  me  unless  he  can 
show  some  special  loss  by  it;  in  which  case  he  may  bring  his 
action  against  me  for  saying  he  was  a  bastard,  per  quod 
he  lost  the  presentation  to  such  a  living.  In  like  manner  to 
slander  another  man's  title  by  spreading  such  injurious 
reports  as,  if  true,  would  deprive  him  of  his  estate  (as  to  call 
the  issue  in  tail,  or  one  who  hath  land  by  descent,  a  bas- 
tard), is  actionable,  provided  any  special  damage  accrues 
to  the  proprietor  thereby,  as  if  he  loses  an  opportunity  of 
selling  the  land.  But  mere  scurrility,  or  opprobrious 
words,  which  neither  in  themselves  import,  nor  are  in  fact 
attended  with  any  injurious  effects,  will  not  support  an  ac- 
tion. So  scandals  which  concern  matters  merely  spiritual, 
as  to  call  a  man  heretic  or  adulterer,  are  cognizable  only  in 
the  ecclesiastical  court,  unless  any  temporal  damages  en- 

7.  Slanders  are  of  two  sorts:    (1)  some  contagious  disease,  where,  if  the 

those  actionable  per  se,  i.  e.,  by  them-  charge  is  true,  it  would  exclude  the 

selves,  without  proof  of  actual  dam-  party  from  society.      (3)   Defamatory 

age;    and    (2)    those   actionable  only  words    falsely    spoken    of    a    person 

on  alleging  and  proving  special  dam-  which   impute  to  the  party   unfitness 

ages,     The  case  of   Pollard   v.   Lyon,  to  perform  the  duties  of  an  office  or 

91    U.    S.    225    (per   Clifford,   J.),    Is  employment  of  profit  or  the  want  of 

usually  cited   to   sustain   this   classi-  integrity  in  the  discharge  of  the  du- 

fication.      In    that    case    Mr.    Justice  ties  of  such  an  office  or  employment. 

Clifford,     in     classifying     slanderous  (4)  Defamatory  words  falsely  spoken 

words,   used  the  following  language:  of  a  party  which  prejudice  such  party 

"(1)   Words  falsely  spoken  of  a  per-  in  his  or  her  profession  or  trade.    (5) 

son   which    impute   to   the   party   the  Defamatory   words   falsely   spoken   of 

commission   of   some   criminal  offence  a  person  which,  though  not  in  them- 

involving  moral  turpitude,  for  which  selves  actionable,   occasion   the   party 

the  party,  if  the  charge  is  true,  may  special     damage."        See,     generally, 

be  indicted  and  punished.     (2)   Words  Hale  on  Torts,  29S;   Cooley  on  Torts 

falsely  spoken  of  a  person  which  im-  (Students'  Ed.),  200  and  cases  cited, 
pute  that  the  party  is  infected  with 


476  Wrongs  and  Kemedies.  [Book  III. 

sues,  which  may  be  a  foundation  for  a  per  quod.^  [125] 
Words  of  heat  and  passion,  as  to  call  a  man  a  rogue  and  ras- 
cal, if  productive  of  no  ill  consequence,  and  not  of  any  of 
the  dangerous  species  before  mentioned,  are  not  actionable; 
neither  are  words  spoken  in  a  friendly  manner,  as  by  way 
of  advice,  admonition,  or  concern,  without  any  tincture  or 
circumstance  of  ill-will ;  for  in  both  these  cases  they  are  not 
maliciously  spoken,^  which  is  part  of  the  definition  of  slan- 
der. Neither  (as  was  formerly  hinted)  are  any  reflecting 
words  made  use  of  in  legal  proceedings,  and  pertinent  to 
the  cause  in  hand,  a  sufficient  cause  of  action  for  slander.* 
Also  if  the  defendant  be  able  to  justify  and  prove  the  words 
to  be  true,  no  action  will  lie,  even  though  special  damage 
hath  ensued,  for  then  it  is  no  slander  or  false  tale. 

A  second  way. of  affecting  a  man's  reputation  is  by 
printed  or  written  libels,  pictures,  signs,  and  the  like,  which 
set  him  in  an  odious  or  ridiculous  light,  and  thereby  dimin- 
ish his  reputation.  With  regard  to  libels  in  general,  there 
are,  as  in  many  other  case,  two  remedies,  one  by  indictment, 
and  the  other  by  action.^  The  former  for  the  puhlic  of- 
fence; for  every  libel  has  a  tendency  to  the  breach  of  the 
peace,  by  provoking  the  person  libelled  to  break  it;  which 
offence  is  the  same  (in  point  of  law)  whether  the  matter 
contained  be  true  or  false;  and  therefore  the  defendant,  on 
an  indictment,  for  publishing  a  libel,  is  not  allowed  to  allege 
the  truth  of  it  by  way  of  justification.  [126.]     [Unless  it 

8.  By  which,  made   orally.      It    also   embraces    all 

9.  Malice,  in  a  legal  sense,  means  other  cases  where  the  additional  grav- 
that  the  publication  has  been  made  itj'  imparted  to  the  charge  by  the 
without  legal  excuse.  Cooley  on  Torts  publication  can  be  fairly  supposed  to 
(Students'  Ed.),  223.  make   it  damaging.     In   other  words, 

1.  As  to  privileged  communications  any  false  and  malicious  writing  pub- 
as  a  defence,  see,  generally,  Cooley  on  lished  of  another  is  libelous  per  se 
Torts  (Students'  Ed.),  224-246;  also  when  its  tendency  is  to  render  him 
vol.  2  of  this  series,  title  Torts.  contemptible   or   ridiculous    in   public 

2.  See  Book  4,  Libel.  ottimation   or   expose    him    to   public 
In  libel  as  well   as  slander,  publi-      hatred  or  contempt  or  hinder  virtuous 

cations  are  actionable  per  se  or  only  men     from     associating     with     him. 

actionable  on  averment  and  proof  of  Cooley  on  Torts   (Students'  Ed.),  112 

special   damage.      The   first   class   in-  et  scq.,  where  the  cases  are  well  col- 

cludes  all   cases  actionable  per  se  if  lectcd  and  considered. 


Chap.  VIII.]  Wkongs  and  Remedies.  477 

was  also  made  with  good  motives  and  for  justifiable  ends.] 
But  in  the  remedy  by  action  on  the  case  which  is  to  repair 
the  parti/  in  damages  for  the  injury  done  him,  the  defendant 
may,  as  for  words  spoken,  justify  the  truth  of  the  facts,  and 
show  that  the  plaintiff  has  received  no  injury  at  all.-^  What 
was  said  with  regard  to  words  spoken  will  also  hold  in 
every  particular  with  regard  to  libels  by  writing  or  print- 
ing, and  the  civil  actions  consequent  thereupon;  but  as  to 
signs  or  pictures,  it  seems  necessary  always  to  show,  by 
proper  innuendos  and  averments  of  the  defendant's .  mean- 
ing, the  import  and  application  of  the  scandal,  and  that 
some  special  damage  has  followed,  otherwise  [i.  e.  without 
the  innuendos],  it  cannot  appear  that  such  libel  by  picture 
was  understood  to  be  levelled  at  the  plaintiff,  or  that  it  was^ 
attended  with  any  actionable  consequences.* 

A  third  way  of  destroying  or  injuring  a  man's  reputation 
is  by  preferring  malicious  indictments  or  prosecutions 
against  him.  For  this,  however,  the  law  has  given  a  very 
adequate  remedy  in  damages,  either  by  an  action  of  cori- 
spiracy,  which  cannot  be  brought  but  against  two  at  the 
least,^  or,  which  is  the  more  usual  way,  by  a  special  action 
on  the  case  for  a  false  and  malicious  prosecution.*^ 

In  order  to  carry  on  the  former  (which  gives  a  recompense  for  the 
danger  to  which  the  party  has  been  exposed)    it  is  necessary  that  the 

3.  The  truth  of  the  injurious  charge  ant  in  instituting  it  was  malicious, 
is,  when  specially  pleaded  in  justifi-  3.  The  prosecution  has  terminated  in 
cation,  a  defence  to  a  civil  action,  the  acquittal  or  discharge  of  the  ac- 
Cooley  on  Torts  (Students'  Ed.),  221  cused.  A  conviction  of  the  accused 
and  cases  cited.  is  conclusive  proof  of  probable  cause, 

4.  See  preceding  note  as  to  special  unless  obtained  by  fraud  or  unfair 
damages.  means.     Cooley   on    Torts    (Students' 

5.  When  a  tort  is  committed  in  Ed.),  170,  176.  Malice  may  be  in- 
pursuance  of  a  conspiracy,  all  the  ferred  from  want  of  probable  cause, 
conspirators  are  jointly  liable.  Cooley  but  if  probable  cause  exists,  the  ex- 
on  Torts  (Students'  Ed.),  85  and  istence  of  malice  also  is  immaterial; 
cases  cited.  Id.,   180.     Advice  of  counsel  to  bring 

6.  In  order  to  sustain  an  action  for  the  prosecution,  given  after  a  full 
a  malicious  prosecution  the  following  and  fair  disclosure  of  all  the  mate- 
circumstances    must    concur:       1.    A  rial  facts  is  a  defence.     Id.,  173.     See, 

suit   or    procerding  without   probable      generally,  Hale  on  Torts,  349;  Coolojr 
cause.     2.  The  motive  of  the  defend-     on  Torts   (Students'  Ed.),  170. 


478  Wrongs  and  Remedies.  [Book  ITT. 

plaintiff  should  obtain  a  copy  of  the  record  of  his  indictment  and  acquit- 
tal; but  in  prosecutions  for  felony  it  is  usual  to  deny  a  copy  of  the  in- 
dictment, where  there  is  any,  the  least  probable  cause  to  found  such 
prosecution  upon.  For  it  would  be  a  very  great  discouragement  to  the 
public  justice  of  the  kingdom  if  prosecutors  who  had  a  tolerable  ground 
of  suspicion  were  liable  to  be  sued  at  law  whenever  their  indictments 
miscarried. 

But  an  action  on  the  case  for  a  malicious  prosecution 
may  be  founded  upon  an  indictment  whereon  no  acquittal 
can  be  had,  as  if  it  be  rejected  by  tlie  grand  jury,  or  be 
coram  non  judice,  or  be  insufficiently  drawn.  [127]  For 
it  is  not  the  danger  of  the  plaintiff,  but  the  scandal,  vexa- 
tion, and  expense  upon  which  this  action  is  founded.  liow- 
ever,  any  probable  cause  for  preferring  it  is  sufficient  to 
justify  the  defendant. 

II.  We  are  next  to  consider  the  violation  of  the  right 
of  personal  liberty.  This  is  effected  by  the  injury  of  false 
imprisonment. 

To  constitute  the  injury  of  false  imprisonment  there  are 
two  points  requisite:  1.  The  detention  of  the  person;"  and 
2.  The  unlawfulnes  of  such  detention.  Every  confinement 
of  the  person  is  an  imprisonment,  whether  it  be^in  a  com- 
mon prison,  or  in  a  private  house,  or  in  the  stocks,  or  even 
by  forcibly  detaining  one  in  the  public  "streets.  Unlawful, 
or  false,  imprisonment  consists  in  such  confinement  or  de- 
tention without  sufficient  authority,  which  authority  may 
arise  either  from  some  process  from  the  courts  of  justice, 
or  from  some  warrant  from  a  legal  officer  having  power  to 
commit,  under  his  hand  and  seal,  and  expressing  the  cause 
of  such  commitment;  or  from  some  other  special  cause  war- 
ranted, for  the  necessity  of  the  thing,  either  by  common 
law  or  act  of  parliament;  such  as  the  arresting  of  a  felon 
by  a  private  person  without  warrant,  the  impressing  of 
mariners  for  the  public  service,  or  the  apprehending  of 
wagoners  for  misbehavior  in  the  public  highways.*     False 

7.  Prima  facie  any  restraint  put  by  legal  imprisonment.    The  person  need 

fear  or  force  upon  the  actions  of  an-  not    be    touclud.      Cooley    on    Torts 

■other   is   unlawful   and   constitutes   a  (Students'  Ed.),  158. 

false  imprisonment,  unless  a  showing  8.  Restraint   by    those    standing   in 

of   justification    makes    it  a   true   or  loco   parentis    is    often    lawful    with- 


Cjiap.  VIIL]  Wrongs  and  Remedies.  479 

imprisonment  also  may  arise  by  executing  a  lawful  warrant 
or  process  at  an  unlawful  time,  as  on  a  Sunday;  for  the 
statute  hath  declared  that  such  service  or  process  shall  be 
void.  [128]  This  is  the  injury.  The  remedy  is  of  two 
sorts:  the* one  removing  the  injury,  the  other  m,aking  satisfac- 
tion for  it. 

The  means  of  removing  the  actual  injury  of  false  imprison- 
ment are  fourfold.  1.  By  writ  of  mainprize.  2.  By  writ 
de  odio  et  atiq.  3.  By  writ  de  homine  replegiando.  4.  By 
writ  of  habeas  corpus. 

1.  The  writ  of  mainprize,  manucaptio,  is  a  writ  directed  to  the  sheriff 
(either  generally,  when  any  man  is  imprisoned  for  a  bailable  offence, 
and  bail  hath  been  refused,  or  specially,  when  the  offence  or  cause  of 
commitment  is  not  properly  bailable  below),  commanding  him  to  take 
sureties  -for  the  prisoner's  appearance,  usually  called  mainpernors,  and 
to  set  him  at  large.  Mainpernors  differ  from  bail  in  that  a  man's  bail 
may  imprison  or  surrender  him  up  before  the  stipulated  day  of  appear- 
ance; mainpernors  can  do  neither,  but  are  barely  sureties  for  his  ap- 
pearance at  the  day.  Bail  are  only  sureties  that  the  party  be  answer- 
able for  the  special  matter  for  which  they  stipulate;  mainpernors  are 
bound  to  produce  him  to  answer  all  charges  whatsoever. 

2.  The  writ  de  odio  et  atia  was  anciently  used  to  be  directed  to  the 
sheriff,  commanding  him  to  inquire  whether  a  prisoner  charged  with 
murder  was  committed  upon  just  cause  of  suspicion,  or  merely  propter 
odium  et  atiam,  for  hatred  and  ill-will;  and  if  upon  the  inquisition  due 
cause  of  suspicion  did  not  appear,  then  there  issued  another  writ  for  the 
sheriff  to  admit  him  to  bail. 

3.  The  writ  de  homine  replegiando  lies  to  replevy  a  man  out  of  prison, 
or  out  of  the  custody  of  any  private  person  (in  the  same  manner  that 
chattels  taken  in  distress  may  be  replevied),  upon  giving  security  to  the 
sheriff  that  the  man  shall  be  forthcoming  to  answer  any  charge  against 
him.  [129] 

The  incapacity  of  these  three  remedies  to  give  complete 
relief  in  every  case  hath  almost  entireh^  antiquated  them, 
and  hath  caused  a  general  recourse  to  be  had,  in  behalf  of 
persons  aggrieved  by  illegal  imprisonment,  to 

4.  The  writ  of  habeas  corpus,^  the  most  celebrated  writ 
in  the  English  law.     Of  this  there  are  various  kinds  made 

out  legal   process;    so,   also,   in  cases      Torts    (Students'  Ed.),  159,  165. 
of    the    dangerous    insane    or    other  9.  Have  the  body, 

like    case    of    necessity.      Coohy    on 


480  Wrongs  and  Remedies.  [Book  III. 

use  of  by  the  courts  at  Westminster  for  removing  prisoners 
from  one  court  into  another  for  the  more  easy  administra- 
tion of  justice. 

Such  is  the  habeas  corpns  ad  respondendoni,^  when  a  man  hath  a 
cause  of  action  against  one  who  Is  confined  by  the  process  of  some  in- 
ferior court,  in  order  to  remove  the  prisoner  and  charge  him  with  this 
new  action  in  the  court  above.  Such  is  that  ad  satisfaciendum,  when  a 
prisoner  hath  had  judgment  against  him  in  an  action  and  the  plaintiff 
ifl  desirous  to  bring  him  up  to  some  superior  court  to  charge  him  with 
process  of  execution.  [130]  Such  also  are  those  ad  pro'sequendum,  testi- 
ficandum, deliberandum,^  etc.,  which  issue  when  it  is  necessary  to  remove 
a.  prisoner,  in  order  to  prosecute  or  bear  testimony  in  any  court,  or  to  be 
tried  in  the  proper  jurisdiction  wherein  the  act  was  committed.  Such 
is,  lastly,  the  common  writ  ad  faciendum  et  recipiendum,^  which  issues 
out  of  any  of  the  courts  of  Westminster  Hall  when  a  person  is  sued  in 
some  inferior  jurisdiction  and  is  desirous  to  remove  the  action  into  the 
superior  court,  commanding  the  inferior  judges  to  produce  the  body  of 
the  defendant,  together  with  the  day  and  cause  of  his  caption  and  de- 
tainer (whence  the  writ  is  frequently  denominated  an  habeas  corpus  cum 
causa)  *  to  do  and  receive  whatsoever  the  king's  court  shall  consider  in 
that  behalf.  This  is  a  writ  grantable  of  common  right,  without  any  mo- 
tion in  court,  and  it  instantly  supersedes  all  proceedings  in  th^  court 
below. 

But  the  great  and  efficacious  writ,  in  all  manner  of  illegal 
confinement,  is  that  of  habeas  corpus  ad  subjiciendum,  di- 
rected to  the  person  detaining  another,  and  commanding 
him  to  produce  the  body  of  the  prisoner,  with  the  day  and 
cause  of  his  caption  and  detention,  ad  faciendum,  subjicien- 
dum, et  recipiendum,  to  do,  submit  to,  and  receive  whatsoever 
the  judge  or  court  awarding  such  writ  shall  consider  in 
that  behalf.  [131]  This  is  a  high  prerogative  writ,  and 
therefore  by  the  common  law  issuing  out  of  the  Court  of 
King's  Bench  [it  also  by  statute  issued  out  of  the  Courts 
of  Common  Pleas  and  Exchequer;  it  might  also  be  issued  by 
the  Lord  Chancellor  in  vacation]  not  only  in  term  time,  but 
also  during  the  vacation,  by  a  fiat^  from  the  Chief  Justice 
or  any  other  of  the  judges,  and  running  into  all  parts  of 

1.  Have  the  body  to  respond.  3.  To  do  and  receive. 

2.  To  prosecute,  testify,  deliberate,  4.  Have  the  body  with  the  cause, 
etc.                                                                         6.  Order. 


CiiAP.  VIII.]  WeonctS  axd  Remedies.  481 

the  king's  dominions.  If  it  issues  in  vacation,  it  is  usually 
returnable  before  the  judge  himself  who  awarded  it,  and 
he  proceeds  by  himself  thereon,  unless  the  term  shall  inter- 
vene, and  then  it  may  be  returned  in  court. 

In  the  King's  Bench  and  Common  Pleas  it  is  necessary 
to  apply  for  it  by  motion  to  the  court,  as  in  the  case  of  all 
other  prerogative  writs  {certiorari,  prohibition,  mandamus, 
&c.),  which  do  not  issue  as  of  mere  course,  without  showing 
some  probable  cause  why  the  extraordinary  power  of  the 
Orown  is  called  in  to  the  party's  assistance.  [132]  On 
the  other  hand,  if  a  probable  ground  be  shown  that  the 
party  is  imprisoned  without  just  cause,  and  therefore  hath 
a  right  to  be  delivered,  the  writ  of  Imbeas  corpus  is  then  a 
writ  of  right,  which  '*  may  not  be  denied,  but  ought  to  be 
granted  to  every  man  that  is  committed,  or  detained  in 
prison,  or  otherwise  restrained,  though  it  be  by  the  com- 
mand of  the  king,  the  privy  council,  or  any  other."  [133] 

Early  in  the  reign  of  Charles  I.  the  Court  of  King's  Bench,  relying  on 
some  arbitrary  precedents  (and  those  perhaps  misunderstood)  deter- 
mined that  they  could  not  upon  an  habeas  corpus  either  bail  or  deliver  a 
prisoner,  though  committed  without  any  cause  assignad,  in  case  he  was 
committed  by  the  special  command  of  the  king  or  by  the  lords  of  the 
privy  council.  [134] 

This  drew  on  a  parliamentary  inquiry,  and  produced  the 
petition  of  right,  3  Car.  I.,  which  recites  this  illegal  judg- 
ment, and  enacts  that  no  freeman  hereafter  shall  be  so  im- 
prisoned or  detained. 

But  when,  in  the  following  year,  Mr.  Selden  and  others  were  committed 
T)y  the  lords  of  the  council,  in  pursuance  of  his  Majesty's  special  com- 
mand, under  a  general  charge  of  "  notable  contempts  and  stirring  up 
sedition  against  the  king  and  government,"  the  judges  delayed  for  two 
terms  (including  also  the  long  vacation)  to  deliver  an  opinion  how  far 
such  a  charge  was  bailable.  And  when  at  length  they  agreed  that  it  was. 
they  however  annexed  a  condition  of  finding  sureties  for  the  good  be- 
havior, which  still  protracted  their  imprisonment,  the  chief  justice.  Sir 
Nicholas  Hyde,  at  the  same  time  declaring  that  "  if  they  were  again  re- 
\  manded  for  that  cause,  perhaps  the  court  would  not  afterwards  grant  a 
habeas  corpus,  being  already  made  acquainted  vnth  the  cause  of  the  im- 
prisonment." 

31 


482  Wboxgs  and  Remedies.  [Book  III, 

These  pitiful  evasions  gave  rise  to  the  statute  16  Car.  I, 
C.  10,  §  8,  whereby  it  is  enacted  that  if  any  person  be  com- 
mitted by  the  king  himself  in  person,  or  by  his  privy  coun- 
cil, or  by  any  of  the  members  thereof,  he  shall  have  granted 
unto  him,  without  any  delay  upon  any  pretence  whatsoever, 
a  writ  of  habeas  corpus,  upon  demand  or  motion  made  to 
the  Court  of  King's  Bench  or  Common  Pleas,  who  shall 
thereupon,  within  three  court  days  after  the  return  is  made, 
examine  and  determine  the  legality  of  such  commitment, 
and  do  what  to  justice  shall  appertain,  in  delivering,  bail- 
ing, or  remanding  such  prisoner.   [135] 

Yet  still  in  the  case  of  Jenks,  who  in  1676  was  committed  by  the  king 
in  council  for  a  turbulent  speech  at  Guildhall,  new  shifts  and  devices 
were  made  use  of  to  prevent  his  enlargement  by  law,  the  Chief  Justice 
(as  well  as  the  Chancellor)  declining  to  award  a  writ  of  habeas  corpus 
ad  subjiciendum  in  vacation,  though  at  last  he  thought  proper  to  award 
the  usual  writs  ad  deliberandum,  etc.,  whereby  the  prisoner  was  dis- 
charged at  the  Old  Bailey.  Other  abuses  had  also  crept  into  daily  prac- 
tice, which  had  in  some  measure  defeated  the  benefit  of  this  great  con- 
stitutional remedy.  The  party  imprisoning  was  at  liberty  to  delay  his 
obedience  to  the  first  writ,  and  might  wait  till  a  second  and  a  third, 
called  an  alias  anrfi  a  pluries,  were  issued  before  he  produced  the  party, 
and  many  ol;her  vexatious  shifts  were  practised  to  detain  S'tate-prisoners 
in  custody. 

The  oppression  of  an  obscure  individual  in  this  instance 
gave  birth  to  the  famous  habeas  corpus  act,  31  Car.  II.  c.  2, 
which  is  frequently  considered  as  another  Magna  Carta  of 
the  kingdom.  The  statute  itself  enacts:  1.  That  on  com- 
plaint and  request  in  writing,  by  or  on  behalf  of  any  person 
committed  and  charged  with  any  crime  (unless  committed 
for  treason  or  felony  expressed  in  the  warrant,  or  as  acces- 
sory, or  on  suspicion  of  being  accessory  before  the  fact  to 
any  petit- treason  or  felony,  or  upon  suspicion  of  such  petit- 
treason  or  felony,  plainly  expressed  in  the  warrant,  or  unless 
he  is  convicted  or  charged  in  execution  by  legal  process), 
the  Lord  Chancellor  or  any  of  the  twelve  judges  in  vacation, 
upon  viewing  a  copy  of  the  warrant,  or  affidavit  that  a  copy 
is  denied,  shall  (unless  the  party  has  neglected  for  two  terms 
to  apply  to  any  court  for  his  enlargement)  award  a  habeas 


Chap.  VIIL]  Weongs  and  Remedies.       :      "^  483 

corpus  for  such  prisoner,  returnable  immediately  before  him- 
self or  any  other  of  the  judges;  and  upon  the  return  made 
shall  discharge  the  party,  if  bailable,  upon  giving  security 
to  appear  and  answer  to  the  accusation  in  the  proper  court 
of  judicature.  [136]  2.  That  such  writs  shall  be  indorsed, 
as  granted  in  pursuance  of  this  act,  and  signed  by  the  person 
awarding  them.  3.  That  the  writ  shall  be  returned  and  the 
prisoner  brought  up  within  a  limited  time  according  to  the 
distance,  not  exceeding  in  any  case  twenty  days.  4.  That 
officers  and  keepers  neglecting  to  make  due  returns,  or  not 
delivering  to  the  prisoner  or  his  agent  within  six  hours  after 
demand  a  copy  of  the  warrant  of  commitment,  or  shifting  the 
custody  of  a  prisoner  from  one  to  another  without  sufficient 
reason  or  authority  (specified  in  the  act),  shall  for  the  first 
offence  forfeit  100?.  and  for  the  second  offence  200?.  to  the 
party  grieved,  and  be  disabled  to  hold  his  office.  That  no 
person  once  delivered  by  habeas  corpus  shall  be  recommitted 
for  the  same  offence  on  penalty  of  500?,  6.  That  every  per- 
son committed  for  treason  or  felony  shall,  if  he  requires  it  the 
first  week  of  the  next  term,  or  the  first  day  of  the  next  session 
of  oyer  and  terminer^  be  indicted  in  that  term  or  session, 
or  else  admitted  to  bail,  unless  the  king's  witnesses  cannot 
be  produced  at  that  time,  and,  if  acquitted,  or  if  not  indicted 
and  tried  in  the  second  term  or  session,  he  shall  be  dis- 
charged from  his  imprisonment  for  such  imputed  offence; 
but  that  no  person,  after  the  assizes  shall  be  open  for  the 
county  in  which  he  is  detained,  shall  be  removed  by  habeas 
corpus  till  after  the  assizes  are  ended,  but  shall  be  left  to 
the  justice  of  the  judges  of  assize.  [137]  7.  That  any  such 
prisoner  may  move  for  and  obtain  his  habeas  corpus,  as 
well  out  of  the  Chancery  or  Exchequer  as  out  of  the  King's 
Bench  or  Common  Pleas;  and  the  Lord  Chancellor  or  judges 
denying  the  same,  on  sight  of  the  warrant  or  oath  that  the 
same  is  refused,  forfeit  severally  to  the  party  grieved  the 
sum  of  500/.  8.  That  this  writ  of  habeas  corpus  shall  run 
into  the  counties  palatine,  cinque  ports,  and  other  privileged 
places,  and  the  islands  of  Jersey  and  Guernsey.  9.  That  no 
inhabitant  of  England  (except  persons  contracting,  or  con- 
victs praying,  to  be  transported,  or  having  committed  some 


484  Wrongs  axd  Remedies.  [Book  III. 

capital  offense  in  the  place  to  which  they  are  sent)  shall  be 
sent  prisoner  to  Scotland,  Ireland,  Jersey,  Guernsey,  or  any 
places  beyond  the  seas,  within  or  without  the  king's  do- 
minions, on  pain  that  the  party  committing,  his  advisers, 
aiders,  and  assistants,  shall  forfeit  to  the  party  aggrieved 
a  sum  not  less  than  500/.^  to  be  recovered  with  treble  costs, 
shall  be  disabled  to  bear  any  office  of  trust  or  profit,  shall 
incur  the  penalties  of  iwaeiminlre,  and  shall  be  incapable  of 
the  king's  pardon. 

This  is  the  substance  of  that  great  and  important  statute, 
which  extends  only  to  the  case  of  commitments  for  such 
criminal  charge  as  can  produce  no  inconvenience  to  public 
justice  by  a  temporary  enlargement  of  the  prisoner,  all 
other  cases  of  unjust  imprisonment  being  left  to  the  habeas 
corpus  at  common  law.  But  even  upon  writs  at  the  com- 
mon law  it  is  now  expected  by  the  court,  agreeable  to  ancient 
precedents  and  the  spirit  of  the  act  of  parliament,  that  the 
writ  should  be  immediately  obeyed,  without  waiting  for  any 
alias  or  pUines,  otherwise  an  attachment  will  issue.*^ 

The  satisfactory  remedy  for  this  injury  of  false  impris- 
ment  is  by  an  action  of  trespass  vi  et  armis,  usually  called 

6.  By  statutes  in  all  the  states  the  to   try   rights   of   property,   etc.,   nor 

benefit  of  this  writ  is  secured  to  every  can  it  take  the  place  of  quo  warranto. 

person   illegally   deprived  of   his   lib-  Id.,  §  1152. 

erty,  whether  by  process  or  order  of  In  the  absence  of  statutory  provi- 

court  or  other  tribunal  or  in  any  other  sion,   a   refusal    to   discharge,   except 

manner    whatsoever.     The  courts   by  in  the  case  of  the  custody  of  children, 

wliich  the  writ  may  be  issued  and  the  does  not  bar  the  issuance  of  a  second 

manner  of  obtaining  the  writ  are  pre-  writ  by   another   court   or   officer.      2 

scribed   by  constitution   and   statutes  Spelling  Extra.  Relief,  §§   1197,   1198 

in  pursuance  thereof  and  its  issuance  and  cases  cited. 

when  a  proper  showing  has  bfen  made  For  practical  purposes  the  petition 

is  enforced  by  severe  penalties.     Con-  is  treated  as  a  complaint  or  declara- 

sult     local     state    constitutions     and  tion    and    the    return    as    an    answer 

statutes.  in  an  ordinary  action.     Id.,  §  1317. 

In  cases  arising  under  the  federal  The  writ  is  served,  imless  otlierwiae 

jurisdiction   the   writ   may   be   issued  provided  by  statute,  by   delivering  it 

by   a   United   States   court   or   judge,  to  the  person  charged  with  the  illegal 

Se6  2  Spelling  Extra.  Relief,  §§  11G2-  restraint    who    makes    return    thereof 

1183.  witli  the  person  detained.     As  to  the 

The  writ  cannot  bo  employed  as  a  requisites  of  the  return,  see  2  Spell- 

substitute  for  appeal  or  writ  of  error,  ing  Extra.  Relief,  §  1322. 


Chap.  VIII.]  Wrongs  axd  Remedies.  485 

an  action  of  false  imprisonment,  which  is  generally  and 
almost  unavoidably  accompanied  with  a  charge  of  assault 
and  battery  also.  [138j 

III.  With  regard  to  the  third  absolute  right  of  Individuals,  or  that  of 
private  property,  though  the  enjoyment  of  it  when  acquired  is  strictly  a 
personal  right,  yet,  as  its  nature  and  original  and  the  means  of  its  ac- 
quisition or  loss  fell  more  directly  under  our  second  general  division  of 
the  rights  of  things,  and  as,  of  course,  the  wrongs  that  affect  these  rights 
must  be  referred  to  the  corresponding  division  in  the  present  book  of  our 
Commentaries,  f  conceive  it  will  be  more  commodious  and  easy  to  con- 
sider together,  rather  than  in  a  separate  view,  the  injuries  that  may  be 
offered  to  the  enjotjment  as  well  as  to  the  rights  of  property.  And  there- 
fore [  shall  here  conclude  the  head  of  injuries  affecting  the  absolute 
rights  of  individuals. 

We  are  next  to  contemplate  those  which  affect  their 
relative  rights,  and,  in  particular,  such  injuries  as  may  be 
done  to  persons  under  the  four  following  relations:  hus- 
band and  wife,  parent  and  child,  guardian  and  ward,  mas- 
ter and  servant. 

I.  Injuries  that  may  be  offered  to  a  person  considered 
as  a  husband  are  principally  three:  abduction,  or  taking 
away  a  man's  wife;  adultery,  or  criminal  conversation 
with  her;  and  beating,  or  otherwise  abusing  her.  [139] 
1.  As  to  the  first  sort,  abduction,  or  taking  her  away,  this 
may  either  be  by  fraud  and  persuasion  or  open  violence, 
though  the  law  in  both  cases  supposes  force  and  constraint, 
the  wife  having  no  power  to  consent,  and  therefore  gives 
a  remedy  by  writ  of  ravishment,  or  action  of  trespass  vi 
et  armis,  de  tixore  rapta  ct  ahducta."  And  the  husband  is 
also  entitled  to  recover  damages  in  an  action  on  the  case 
against  such  as  persuade  and  entice  the  wife  to  live  sepa- 
rate from  him  without  a  sufficient  cause.^     2.  Adultery, 

7.  Trespass  by  force  and  arms  for  in  favor  of  her  husband  to  recover  for 
a  wife  ravished  and  abducted.  the  loss  of  his  wife's  services,  society, 

8.  A  personal  injury  to  the  wife  etc.,  and  for  expenses,  if  any,  incurred, 
gives  rise  to  two  causes  of  action,  one  Cooley  on  Torts  (Students'  Ed.),  254, 
in  favor  of  the  wife  for  the  personal  Avhere  the  cases  are  fully  collected, 
injury  to  herself  where  slie  has  a  Where  she  is  enticed  away,  tlie  ground 
right   to   her   earnings,   etc.,  and   one  of  action  is  the  loss  of  her  services. 


486  Wrongs  and  Remedies.  [Book  TIL 

or  criminal  conversation  with  a  man's  wife,  though  it  is 
as  a  public  crime  left  by  our  laws  to  the  coercion  of  the 
spiritual  courts,  yet,  considered  as  a  civil  injury,  the  law 
gives  a  satisfaction  to  the  husband  for  it  by  action  of  tres- 
pass vi  et  armis  against  the  adulterer,  wherein  the  dam- 
ages recovered  are  usually  very  large  and  exemplary.* 
But  these  are  properly  increased  and  diminished  by  cir- 
cumstances, as  the  rank  and  fortune  of  the  plaintiff  and 
defendant,  the  relation  or  connection  between  them,  the 
seduction  or  otherwise  of  the  wife,  founded  on  her  pre- 
vious behavior  and  character,  and  the  husband's  obliga- 
tion pf  settlement  or  otherwise  to  provide  for  those  chil- 
dren which  he  cannot  but  suspect  to  be  spurious.  [140] 
In  this  case,  and  upon  indictments  for  polygamy,  a  mar- 
riage in  fact  must  be  proved,  though  generally  in  other 
cases  reputation  and  cohabitation  are  sufficient  evidence  of 
marriage.  3.  The  third  injury  is  that  of  beating  a  man's 
wife,  or  otherwise  ill-using  her,  for  which,  if  it  be  a  com- 
mon assault,  battery,  or  imprisonment,  the  law  gives  the 
usual  remedy  to  recover  damages  by  action  of  trespass  vi 
et  armis,  which  must  be  brought  in  the  names  of  the  hus- 
band and  wife  jointly;  but  if  the  beating  or  other  maltreat- 
ment be  very  enormous,  so  that  thereby  the  husband  is 
deprived  for  any  time  of  the  company  and  assistance  of  his 
wife,  the  law  then  gives  him  a  separate  remedy  by  an  action 
of  trespass  in  nature  of  an  action  upon  the  case  for  this  ill- 
usage,  per  qiiod  consortium  amisit,^  in  which  he  shall  recover 
a  satisfaction  in  damages, 

II.  Injuries  that  may  be  offered  to  a  person  considered 
in  the  relation  of  a  parent  were  likewise  of  two  kinds: 
1.  Abduction,  or  taking  his  children  away;  and  2.  Marrying 
his  son  and  heir  without  the  father's  consent,  whereby  dur- 
ing the  continuance  of  the  military  tenure  he  lost  the  value 
of  his  marriage.     [Obsolete.]     As  to  the  injury  of  abduc- 

society,  etc.     lb.    And  now  the  tend-  such  an  action  was  held  to  lie  at  the 
cncy   of   authority   favors   giving  the  suit  of  the  wife  against  her  mother- 
wife  a  right  of  action  against  one  who  in-law  for  the  enticement  of  her  liua- 
alienates  from  her  her  husband's  af-  band.     See  Cooley  on  Torts,  25S. 
fections.    Id.,  257  and  numerous  cases  9.  See  note  2  above. 
in  the  note;  Hale  on  Torts,  277,  278.  1.  By  which  he  lost  the  society. 
In  Huling  v.  Huling.  32  111.  App.  519, 


Chap.  VIII.]  Wrongs  and  Remedies.  4S7 

tion,  or  taking  away  the  cliildren  from  the  father,  that  is 
also  a  matter  of  doubt  whether  it  be  a  civil  injury  or  no;  for 
before  the  abolition  of  the  tenure  in  chivalry  it  was  equally 
a  doubt  whether  an  action  would  lie  for  taking  and  carry- 
ing away  any  other  child  besides  the  heir,  some  holding 
that  it  would  not,  upon  the  supposition  that  the  only  ground 
or  cause  of  action  was  losing  the  value  of  the  heir's  mar- 
riage, and  others  holding  that  an  action  would  lie  for  taking 
away  any  of  the  children,  for  that  the  parent  hath  an  interest 
lu  them  all  to  provide  for  their  education.  If,  therefore, 
before  the  abolition  of  these  tenures  it  was  an  injury  to 
the  father  to  take  away  the  rest  of  his  children  as  well  as 
his  heir  (as  I  am  inclined  to  think -it  was),  it  still  remains 
an  injury,  and  is  remediable  by  writ  of  ravishment,  or  action 
of  trespass  vi  et  armis,  de  fiHo,  vel  filia,  rapto  vel  ahducto,^ 
in  the  same  manner  as  the  husband  may  have  it  on  account 
of  the  abduction  of  his  wife.^   [141] 

III.  Of  a  similar  nature  to  the  last  is  the  relation  of 
guardian  and  ward,  and  the  like  actions.,  mutatis  mutandis,* 
as  are  given  to  fathers,  the  guardian  also  has  for  recovery 
of  damages,  when  his  ward  is  stolen  or  ravished  away  from 
him.^  But  a  more  speedy  and  summary  method  of  redress- 
ing all  complaints  relative  to  wards  and  guardians  hath  of 
late  obtained  by  an  application  to  the  Court  of  Chancery, 
Avliich  is  the  supreme  guardian,  and  has  the  superintendent 
jurisdiction  of  all  the  infants  in  the  kingdom.  And  it  is 
expressly  provided  by  statute  12  Car.  II.  c.  24,  that  testa- 
mentary guardians  may  mantain  an  action  of  ravishment  or 
trespass  for  recovery  of  any  of  their  wards,  and  also  for 
damages  to  be  applied  to  the  use  and  benefit  of  the  infants. 

IV.  To  the  relation  between  master  and  servant,  and  the 
rights  accruing  therefrom,  there  are  two  species  of  injuries 
incident.  The  one  is,  retaining  a  man's  hired  servant  be- 
fore his  time  is  expired;  the  other  is  beating  or  confining 
him  in  such  a  manner  that  he  is  not  able  to  perform  his 

2.  Trespass  by  force  and  arms  for  namely,  loss  of  service.  See  Cooley 
son  or  daughter  ravished  or  abducted,  on  Torts   (Students'  Ed.),  258-264. 

3.  The  ground  of  this  action  is  the  4.  The  terms  being  changed, 
same    as    in    the    case    of    the    wife,  5.  Cooley  on  Torts  Students'  Ed.), 

264. 


488  "Wrongs  and  Remedies.  [Book  III, 

work.  As  to  the  first,  the  retaining  another  person's  ser- 
vant during  the  time  he  has  agreed  to  serve  his  present 
master,  this  is  an  illegal  act.  [142]  For  every  master  has 
by  his  contract  purchased  for  a  valuable  consideration  the 
service  of  his  domestics  for  a  limited  time:  the  inveigling 
or  hiring  his  servant,  which  induces  a  breach  of  this  con- 
tract, is  therefore  an  injury  to  the  master;  and  for  that 
injury  the  law  has  given  him  a  remedy  by  a  special  action 
on  the  case,  and  he  may  also  have  an  action  against  the 
servant  for  the  non-performance  of  his  agreement.  But  if 
the  new  master  was  not  apprized  of  the  former  contract,  no 
action  lies  against  him,  unless  he  refuses  to  restore  the  ser- 
vant upon  demand.  The  other  point  of  injury  is  that  of 
beating,  confining,  or  disabling  a  man's  servant,  which  de- 
pends upon  the  same  principle  as  the  last,  viz.,  the  property 
which  the  master  has  by  his  contract  acquired  in  the  labor 
of  the  servant.  In  this  case,  besides  the  remedy  of  an  ac- 
tion of  battery  or  imprisonment,  which  the  servant  himself 
as  an  individual  may  have  against  the  aggressor,  the  mas- 
ter also,  as  a  recompense  for  his  immediate  loss,  may  main- 
tain an  action  of  trespass  vie  et  armis,  in  which  he  must 
allege  and  prove  the  special  damage  he  has  sustained  by 
the  beating  of  his  servant,  per  quod  serritiiun  amisit.^ 

The  wife  cannot  recover  damages  for  beating  her  hus- 
band, for  she  hath  no  separate  interest  in  anything  during 
her  coverture.^  [143]  The  child  hath  no  property  in  his 
father  or  guardian,  as  they  have  in  him,  for  the  sake  of 
giving  him  education  and  nurture.^  And  so  the  servant, 
whose  master  is  disabled,  does  not  thereby  lose  his  main- 
tenance or  wages.  He  had  no  property  in  his  master;  and 
if  he  receives  his  part  of  the  stipulated  contract,  he  suffers^ 
no  injury,  and  is  therefore  entitled  to  no  action  for  any 
battery  or  imprisonment  which  such  master  may  happen 
to  endure. 

6.  By    which    he   lost   his    services.      number  of  cases  are  cited  by  tlie  abov&, 
Coolcy  on  Torts  (Students'  Ed.),  270.      authors  in  tlie  notes. 

7.  See,    however,    Cooley    on    Torts      "   8.  See  Cooley  on  Torts    (Students' 
(Students'  Ed.),  257  and  note;   Hale      Ed  ) ,  264.   This  rule  has  been  changed 

on  Torts,  277,  278  and  note.    A  large      by    statute    in    some    cases.      Consult 

local  statutes. 


Chap.  IX.]     Of  I:njuries  to  Personal  Property.  489 

CHAPTER  IX. 

OF  INJURIES  TO  PERSOXAL  PROPERTY. 

I.  The  rights  of  personal  property  in  possession  are  liable 
to  two  species  of  injuries,  the  amotion  or  deprivation  of 
that  possession,  and  the  abuse  or  damage  of  the  chattels, 
while  the  possession  continues  in  the  legal  owner.  {144] 
The  former,  or  deprivation  of  possession,  is  also  divisible 
into  two  branches:  the  unjust  and  unlawful  taJdnfj  them 
away,  and  the  unjust  detaining  them,  though  the  original 
taking  might  be  lawful. 

1.  And  first  of  an  unlawful  taking.  [145]  The  remedy 
for  the  wrongful  taking  of  goods  is,  in  the  first  place,  the 
restitution  of  the  goods  themselves  so  wrongfully  taken, 
with  damages  for  the  loss  sustained  by  such  unjust  inva- 
sion, which  is  effected  by  action  of  replevin.  [See  Action 
of  Detinue,  post.]  This  obtains  only  in  one  instance  «  an 
unlawful  taking,  that  of  a  wrongful  distress;  and  this  and 
the  action  of  detinue  are  almost  the  only  actions  in  which 
the  actual  specific  possession  of  the  identical  personal  chat- 
tel is  restored  to  the  proper  owner. 

An  action  of  replevin  is  founded  upon  a  distress  taken 
wrongfully  and  without  sufficient  cause,  being  a  re-delivery 
of  the  pledge,  or  thing  taken  in  distress,  to  the  owner,  upon 
his  giving  security  to  try  the  right  of  the  distress,  and  to 
restore  it  if  the  right  be  adjudged  against  him,  after  which 
the  distrainor  may  keep  it  till  tender  made  of  sufficient 
amends,  but  must  then  re-deliver  it  to  the  owner.  ^   [146] 

1.  The  action  of  replevin  lias  been  The    procedure    has    also    been    very 

retained  in  some  of  the  states  but  its  much    simplified   by   statute.     In   all 

scope   has   been  very  much   increased  the  states  the  right  to  recover  goods 

l)y  statute  so  that  it  lies  for  the  re-  and  chattels  under  the  circumstances 

covery  not  only  of  goods  and  chattels  above  stated,  has,  of  course,  been  pre- 

iinlawfully  distrained,  but  for  the  re-  served  by   appropriate   legal   proceed- 

<'overy  of  goods  and  chattels  unlaw-  ings    (claim   and   delivery,   etc.),   not 

fully  taken  or  detained  in  any  other  called  replevin,  though,  in  substance, 

-^vay,   so   that  it   now   covers  in  scope  the  same.     Consult  the  local  statutes 

not    only    the    original    action    of    re-  and  books  on   practice. 
j)kvin  but  the  action  of  detinue  also. 


490  Op  Injuries  to  Personal  Property.     [Book  IIT. 

And  formerly,  when  the  party  distrained  upon  intended  to  dispute 
the  right  of  the  distress,  he  had  no  other  process  by  the  old  common  law 
than  by  a  writ  of  replevin,  replegiari  facias,  which  issued  out  of  Chancery, 
commanding  the  sheriff  to  deliver  the  distress  to  the  owner,  and  after- 
wards to  do  justice  in  respect  of  the  matter  in  dispute  in  his  own  county 
court.  [147]  But  this  being  a  tedious  method  of  proceeding,  the  beasta 
or  other  goods  were  long  detained  from  the  owner,  to  his  great  loss  and 
damage. 

For  which  reason  the  statute  of  Marlbridge  directs  that 
(without  suing  a  writ  out  of  the  Chancery)  the  sheriff,  im- 
mediately upon  plaint  to  him  made,  shall  proceed  to  re^Jlevy 
the  goods.  Upon  application,  therefore,  either  to  the 
sheriff  or  one  of  his  deputies,  security  is  to  be  given  in  pur- 
suance of  the  statute  of  Westm.  2, 13  Edw.  I.  c.  2.  1.  That 
the  party  replevying  will  pursue  his  action  against  the  dis- 
trainor, for  which  purpose  he  puts  in  plegios  de  prosequcndo, 
or  pledges  to  prosecute;  and,  2.  That  if  the  right  be  deter- 
mined against  him,  he  will  return  the  distress  again,  for 
which  purpose  he  is  also  bound  to  find  plegios  de  retorno 
hahcndo.^  Besides' these  pledges,  the  sufficiency  of  which 
is  discretionary  and  at  the  peril  of  the  sheriff,  the  statute 
11  Geo.  II.  c.  19,  requires  that  the  officer  granting  a  replevin 
on  a  distress  for  rent  shall  take  a  bond  with  two  sureties  in 
a  sum  of  double  the  value  of  the  goods  distrained,  condi- 
tioned to  prosecute  the  suit  with  effect  and  without  delay,, 
and  for  return  of  the  goods;  which  bond  shall  be  assigned 
to  the  avowant  or  person  making  cognizance,  on  request 
made  to  the  officer,  and,  if  forfeited,  may  be  sued  in  the 
name  of  the  assignee.  The  sheriff,  on  receiving  such  se- 
curity, is  immediately,  by  his  officers,  to  cause  the  chattels 
taken  in  distress  to  be  restored  into  the  possession  of  the 
party  distrained  upon,  unless  the  distrainor  claims  a  prop- 
erty in  the  goods  so  taken.  For  if  by  this  method  of  dis- 
tress the  distrainor  happens  to  come  again  into  possession 
of  his  own  property  in  goods  which  before  he  had  lost,  the 
law  allows  him  to  keep  them,  without  any  reference  to  the 
manner  by  which  he  thus  has  gained  possession,  being  a 
kind  of  personal  remitter.   [148]     If,   therefore,   the   dis- 

2.  Pledges  to  make, return. 


Chap.  IX.]     Of  Injuries  to  Peesonal  Propebty.  491 

trainor  claims  any  such  property,  the  party  replvying  must 
sue  out  a  writ  de  proprietatc  probanda,^  in  which  the  sheriff 
is  to  try,  by  an  inquest,  in  w^iom  the  property  previous  to 
the^  distress  subsisted.  And  if  it  be  found  to  be  in  the  dis- 
trainor, the  sheriff  can  proceed  no  farther,  but  must  return 
the  claim  of  property  to  the  Court  of  King's  Bench  or 
Common  Pleas,  to  be  there  further  prosecuted,  if  thought 
advisable,  and  there  finally  determined. 

But  if  no  claim  of  property  be  put  in,  or  if  (upon  trial) 
the  sheriff'^s  inquest  determines  it  against  the  distrainor, 
then  the  sheriff  is  to  replevy  the  goods  (making  use  of  even 
force,  if  the  distrainor  makes  resistance),  in  case  the  goods 
be  found  within  his  county.  But  if  the  distress  be  carried 
out  of  the  county,  or  concealed,  then  the  sheriff  may  return 
that  the  goods,  or  beasts,  are  eloigned,  elongata,  carried  to 
a  distance,  to  places  to  him  unknown;  and  thereupon  the 
party  replevying  shall  have  a  w^rit  of  capias  in  withernam, 
in  vetito  (or,  more  properly,  repetito)  namio,  a  term  which 
signifies  a  second  or  reciprocal  distress,  in  lieu  of  the  first, 
which  was  eloigned.  It  is  therefore  a  command  to  the 
sheriff  to  take  other  goods  of  the  distrainor,  in  lieu  of  the 
distress  formerly  taken,  and  eloigned,  or  withheld  from  the 
owner.  So  that  here  is  now  distress  against  distress,  one 
being  taken  to  answ^er  the  other  by  way  of  reprisal.  For 
which  reason  goods  taken  in  withernam  cannot  be  replevied 
till  the  original  distress  is  forthcoming. 

But  in  common  cases  the  goods  are  delivered  back  to  the 
party  replevying,  who  is  then  bound  to  bring  his  action 
of  replevin,  which  may  be  prosecuted  in  the  county  court, 
be  the  distress  of  what  value  it  may.  [149]  But  either 
party  may  remove  it  to  the  superior  courts  of  King's  Bench 
or  Common  Pleas  by  writ  of  recordari  or  pone,  the  plaintiff 
at  pleasure,  the  defendant  upon  reasonable  cause ;  and  also, 
if  in  the  course  of  proceeding  any  right  of  freehold  comes 
in  question,  the  sheriff  can  proceed  no  farther,  so  that  it  is 
usual  to  carry  it  up  in  the  first  instance  to  the  courts  of 
Westminster  Hall.  Upon  this  action  brought,  and  declara- 
tion delivered,  the  distrainor,  who  is  now  the  defendant, 

3.  For  the  proof  of  the  property. 


492  Of  Injuries  to  Personal  Property.     [Book  III. 

makes  avowry;  that  is,  he  avows  taking  the  distress  in  liis 
own  right,  or  the  right  of  his  wife,  and  sets  forth  the  reason 
of  it,  as  for  rent  arrere,  damage  done,  or  other  cause;  or 
else,  if  he  justifies  in  another's  right  as  his  bailiff  or  s'er- 
vant,  he  is  said  to  make  cognizance,  that  is,  he  acknoidedges 
the  taking,  but  insists  that  such  taking  was  legal,  as  he 
acted  by  the  command  of  one  who  had  a  right  to  distrain, 
and  on  the  truth  and  legal  merits  of  this  avowry  or  cogniz- 
ance the  cause  is  determined.  If  it  be  determined  for  the 
plaintiff,  viz.,  that  the  distress  was  wrongfully  taken,  he 
has  already  got  his  goods  back  into  his  own  possession,  and 
shall  keep  them,  and  moreover  recover  damages.  But  if 
the  defendant  prevails,  by  the  default  or  nonsuit  of  the 
plaintiff,  then  he  shall  have  a  writ  de  retorno  habendo,* 
whereby  the  goods  or  chattels  (which  were  distrained  and 
then  replevied)  are  returned  again  into  his  custody,  to  be 
sold  or  otherwise  disposed  of  as  if  no  replevin  hath  been 
made.  And  at  the  common  law  the  plaintiff  might  have 
brought  another  replevin,  and  so  in  infinitum,  to  the  intol- 
erable vexation  of  the  defendant.  Wherefore  the  statute 
of  Westm.  2,  c.  2,  restrains  the  plaintiff,  when  nonsuited, 
from  suing  out  any  fresh  replevin,  but  allows  him  a  judicial 
writ,  issuing  out  of  the  original  record,  and  called  a  writ 
of  second  deliverance,  in  order  to  have  the  same  distress 
again  delivered  to  him  on  giving  the  like  security  as  before. 
[150]  And  if  the  plaintiff  be  a  second  time  nonsuit,  or  if 
the  defendant  has  judgment  upon  verdict  or  demurrer  in 
the  first  replevin,  he  shall  have  a  writ  of  return  irreplevis- 
able, after  which  no  writ  of  second  deliverance  shall  be 
allowed.  But  in  case  of  a  distress  for  rent  arrere,  the  writ 
of  second  deliverance  is  in  effect  taken  awav  by  statute 
17  Car.  n.  c.  7,  — 

W^hich  directs  that,  if  the  plaintiff  be  nonsuit  before  issue  joined,  then 
upon  suggestion  made  on  the  record  in  nature  of  an  avowry  or  cogniz- 
ance; or  if  judgment  be  given  against  him  on  demurrer,  then,  without  any 
such  suggestion,  the  defendant  may  have  a  writ  to  inquire  into  the  value 
of  the  distress  by  a  jury,  and  shall  recover  the  amount  of  it  in  damages, 
if  less  than  the  arrear  of  rent;  or  if  more,  then  so  much  as  shall  be  equal 

4.  For  having  return. 


Chap.  IX.]     Of  Injuries  to  Persois^al  PRorERXT.  493 

to  such  arrear,  with  costs;  or,  if  the  nonsuit  be  after  issue  joined,  or  if 
a  verdict  be  against  the  plaintiff,  then  the  jury  impanelled  to  try  the 
cause  shall  assess  such  arrears  for  the  defendant;  and  if  (in  any  of 
these  cases)  the  distress  be  insufficient  to  answer  the  arrears  distrained 
for,  the  defendant  may  take  a  further  distress  or  distresses.  But  other- 
wise, if,  pending  a  replevin  for  a  former  distress,  a  man  distrains  again 
for  the  same  rent  or  service,  then  the  party  is  not  driven  to  his  action 
of  replevin,  but  shall  have  a  writ  of  recaption,  and  recover  damages  for 
the  defendant  the  re-distrainor's  contempt  of  the  process  of  the  law. 

In  like  manner  other  remedies  for  other  unlawful  takings 
of  a  man's  goods  consist  only  in  recovering  a  satisfaction 
in  damages.  And  if  a  man  takes  the  goods  of  another  out 
of  his  actual  or  virtual  possession,  without  having  a  lawful 
title  so  to  do,  it  is  an  injury,  which,  though  it  doth  not 
amount  to  felony  unless  it  be  done  animo  furandi^  is  never- 
theless a  transgression  for  which  an  action  of  trespass  vi  et 
armis  will  lie,  wherein  the  plaintiff  shall  not  recover  the 
thing  itself,  but  only  damages  for  the  loss  of  it.^  [151]  Or, 
if  committed  without  force,  the  party  may,  at  his  choice, 
have  another  remedy  in  damages  by  action  of  trover  and 
conversion,  of  which  I  shall  presently  say  more. 

2.  Deprivation  of  possession  may  also  be  by  an  unjust 
detainer  of  another's  goods,  though  the  original  taking  was 
lawful.'^  As  if  I  distrain  another's  cattle  damage-feasant, 
and  before  they  are  impounded  he  tenders  me  sufficient 
amends;  now,  though  the  original  taking  was  lawful,  my 
subsequent  detainment  of  them  after  tender  of  amends  is 
wrongful,  and  he  shall  have  an  action  of  replevin  against 
me  to  recover  them;  in  which  he  shall  recover  damages  only 
for  the  detention  and  not  for  the  caption^  because  the  orig- 
inal taking  was  lawful.  Or  if  I  lend  a  man  a  horse,  and  he 
afterwards  refuse  to  restore  it,  this  injury  consists  in  the 
detaining,  and  not  in  the  original  taking,  and  the  regular 

5.  With  the  intention  of  stealing.  lawfully  taken,  but  also  for  goods  un- 

6.  In  such  a  case  the  plaintiff  has  lawfully  detained.  See,  generally,  1 
Ills  election  to  sue  in  replevin,  tres-  Bouvier  Law  Diet.,  title  Detinue, 
pass  or  trover.                     '  That  the  action  has  been  used  in  this 

7.  In  the  United  States  the  action  countrj'  (though  now  obsolete),  see 
of  detinue  is  obsolete,  and  by  statute  the  American  cases  cited  by  Mr.  Boii- 
rcplevin   lies   not   only   for  goods   un-  vier. 


494:  Of  Injuries  to  Personal  Property.     [Book  III. 

method  for  me  to  recover  possession  is  by  action  of  detinue. 
In  this  action  of  detinue  it  is  necessary  to  ascertain  the 
thing  detained,  in  such  manner  as  that  it  may  be  specifically 
known  and  recovered.  Therefore  it  cannot  be  brought  for 
money,  corn,  or  the  like;  for  that  cannot  be  known  from 
other  money  or  corn,  unless  it  be  in  a  bag  or  a  sack,  for 
then  it  may  be  distinguishably  marked.  In  order,  there- 
fore, to  ground  an  action  of  dfetinue,  which  is  only  for  the 
detaining,  these  points  are  necessary:  1.  That  the  defend- 
ant came  lawfully  into  possession  of  the  goods,  as  either  by 
delivery  to  him  or  finding  them;  2.  That  the  plaintiff  have 
a  property;  3.  That  the  goods  themselves  be  of  some  value; 
and  4.  That  they  be  ascertained  in  point  of  identity.  [5. 
That  they  are  unlawfully  detained.]  Upon  this  the  jury,  if 
they  find  for  the  plaintiff,  assess  the  respective  values  of 
the  several  parcels  detained,  and  also  damages  for  the  de- 
tention. And  the  judgment  is  conditional  that  the  plaintiff 
recover  the  said  goods,  or  (if  they  cannot  be  had)  their 
respective  values,  and  also  the  damages  for  detaining  them. 
But  there  is  one  disadvantage  Which  attends  this  action: 
viz.,  that  the  defendant  is  herein  permitted  to  wage  his 
law,  that  is,  to  exculpate  himself  by  oath,  and  thereby  de- 
feat the  plaintiff  of  his  remedy.*  [152] 

The  action  of  trover  and  conversion  was  in  its  original 
an  action  of  trespass  upon  the  case  for  recovery  of  damages 
against  such  person  as  had  found  another's  goods  and  re- 
fused to  deliver  them  on  demand,  but  converted  them  to  his 
own  use ;  from  w^hich  finding  and  converting  it  is  called  an 
action  of  trover  and  conversion.     The  freedom  of  this  action 

8.  When  in  an  action  of  debt  on  a  Wager  of  law  applied  only  to  ac- 

simple  contract  the  defendant  pleaded  tions  of  debt  on  simple  contract  and 

nil  debet  and  concluded  his  plea  with  to  actions  of  detinue.     Wager  of  law 

this  formula:     "And  this  he  is  ready  is  now  obsolete  in  the  United  States. 

to  defend  against  him  the  said  A  B  If  it  still  existed  and  there  were  no 

and  his  suit,  as  the  court  of  our  lord,  concurrent   remedies,   there   would  be 

the   king,    here   shall   consider,"   etc.,  no   general   need   of   a   banl<rupt   law 

he   was   said    to   wage    his    law.      He  to  discharge  an  insolvent  debtor.     See 

was  tlien  required  to  swear  he  owed  2  Bouvier  Law  Dict.j  title  Wager  of 

the    plaintiff    nothing    and    to    bring  Law. 
eleven    compurgators    to    swear    that 
they  believed  him. 


Chap.  IX.]     Of  Injuries  to  Personal  Property.  495 

from  wager  of  law,  and  the  less  degree  of  certainty  requisite 
in  describing  the  goods,  gave  it  so  considerable  an  ad- 
vantage over  the  action  of  detinue,  that  by  a  fiction  of  law 
actions  of  trover  were  at  length  permitted  to  be  brought 
against  any  man  who  had  in  his  possession  by  any  means 
whatsoever  the  personal  goods  of  another,  and  sold  them 
or  used  them  without  the  consent  of  the  owner,  or  refused 
to  deliver  them  when  demanded.*'  The  injury  lies  in  the 
conversion;  for  any  man  may  take  the  goods  of  another  into 
possession  if  he  finds  them,  but  no  finder  is  allowed  to 
acquire  a  property  therein  unless  the  owner  be  forever 
unknown;  and  therefore  he  must  not  convert  them  to  his 
own  use,  which  the  law  presumes  him  to  do  if  he  refuses 
them  to  the  owner;  for  which  reason  such  refusal  also  is, 
prima  facie,  sufficient  evidence  of  a  conversion.  The  fact 
of  the  finding,  or  trover,  is  therefore  now  totally  imma- 
terial; for  the  plaintiff  needs  only  to  suggest  (as  words  of 
form)  that  he  lost  such  goods,  and  that  the  defendant  found 
them;  and  if  he  proves  that  the  goods  are  his  property, 
and  that  the  defendant  had  them  in  his  possession,  it  is 
sufficient.  But  a  conversion  must  be  fully  proved,^  and 
then  in  this  action  the  plaintiff  shall  recover  damages  equal 
to  the  value  of  the  thing  converted,  but  not  the  thing  itself; 
which  nothing  will  recover  but  an  action  of  detinue  or 
replevin. 

As  to  the  damage  that  may  be  offered  to  things  personal 
while  in  the  possession  of  the  owner,  as  hunting  a  man's 
deer,  shooting  his  dogs,  poisoning  his  cattle,  or  in  any  wise 
taking  from  the  value  of  any  of  his  chattels,  or  making 
them  in  a  worse  condition  than  before,  these  are  injuries 

9.  The  action  of  trover  in  still  in  Illinois  the  fiction  of  losing  and  find- 
use  in  Illinois  and  Michigan  and  per-  ing  is  still  retained  in  the  declaration, 
haps  in  other  states.  It  is  a  concur-  See,  generally,  Puterburgh's  Com. 
rent  action  with  trespass  de  bonis  Law,  Plead.  &  Practice  (111.),  7th 
<isportatis  (for  goods  taken  and  car-  Ed.,  ch.  8,  pp.  282-297;  Green's  New 
ried  away)  and  lies  for  the  wrongful  Practice  (Mich.),  2d  Ed.,  71;  2  id. 
conversion  of  goods  and  chattels.  Any  *1315;  Cooley  on  Torts  (Students' 
exercise  of  unlawful  dominion  over  the  Ed.),  417;  Burdick  on  Torta  (M 
goods  and  chattels  of  another  amounts  Ed.),  ch.  12,  p.  399. 
to    a    conversion.      In    Michigan    and  1.  See  note,  s€pra. 


49G  Of  Injuries  to  Personal  Property.     [Book  III. 

too  obvious  to  need  explication.  [153]  The  remedies  given 
by  the  law  to  redress  them  are  in  two  shapes :  by  action  of 
tespass  vi  et  armis,  where  the  act  is  in  itself  immediatehj 
injurious  to  another's  property,  and  therefore  necessarily 
accompanied  with  some  degree  of  force;  and  by  special 
action  on  the  case,  where  the  act  is  in  itself  indifferent,  and 
the  injury  only  consequential,  and  therefore  arising  without 
any  breach  of  the  peace.^  It  is  not  material  whether  the 
damage  be  done  by  the  defendant  himself,  or  his  servants 
by  his  direction,  for  the  action  will  lie  against  the  master 
as  well  as  the  servant.  And  if  a  man  keeps  a  dog  or  other 
brute  animal  used  to  do  mischief,  as  by  worrying  sheep,  or 
the  like,  the  owner  must  answer  for  the  consequences  if  he 
knows  of  such  evil  habit.^ 

II.  We  are  next  to  consider  those  injuries  which  regard 
things  in  action  only,  or  such  rights  as  are  founded  on  and 
arise  from  contracts. 

Express  contracts  include  three  distinct  species:  debts, 
covenants,  and  promises. 

1.  The  legal  acceptation  of  debt  is  a  sum  of  money  due 
by  certain  and  express  agreement,  as,  by  a  bond  for  a  deter- 
minate sum,  a  bill  or  note,  a  special  bargain,  or  a  rent  re- 
served on  a  lease,  where  the  quantity  is  fixed  and  specific, 
and  does  not  depend  upon  any  subsequent  valuation  to 
settle  it.  [154]  The  non-payment  of  these  is  an  injury,  for 
which  the  proper  remedy  is  by  action  of  debt  to  compel  the 
performance  of  the  contract  and  recover  the  specifical  sum 

2.  As  to  the  distinction  at  common  Illinois.  Howell's  Statutes,  1942; 
law  between  the  actions  of  trespass  1  Green's  New  Pract.  *70;  III.  Rev. 
and  case,  see  the  leading  case  of  Scott  Stat.,  ch.  110,  sec.  22.  In  Illinois 
V.  Shepherd,  2  Blackstone,  892;  1  counts  in  trover  and  replevin  may, 
Smith's  Lead.  Cases,  "549,  where  it  by  statute,  be  joined  in  the  same  dec- 
was  held  that  trespass  will  lie  for  laration.  Id.,  §  23. 
originally  throwing  a  squib,  which  3.  Cooky  on  Torts  (Students' Ed.) , 
after  having  been  thrown  about  in  346  and  notes;  but  the  knowledge  of 
self-defence  by  other  persons,  at  last  the  owner,  or  the  scienter,  must  be 
put  out  the  plaintiff's  eye.  See,  also,  averred  and  proved.  Id.,  346.  As  to 
Cooley  on  Torts  (Students'  Ed.)>  40,  animals /erae  naturae  the  general  rule 
15.^.  is   that   a   person   keeps   them   at   his 

The     distinction     l^ftween    trespass  peril  and  is  liable  for  any  injury  they 

«nd    trespass    on    the    case    has    been  do    to   one    not    at    fault.      Id.,    350; 

aoulistKd  bv  statute  in  Michigan  and  Burdick  on  Torts,  508. 


CjrAP.  IX.]     Of  Injuries  to  Personal  Property.  497 

due.  This  is  the  shortest  and  surest  remedy,  particularly 
where  the  debt  arises  upon  a  specialty,  that  is,  upon  a  deed 
or  instrument  under  seal.  So,  also,  if  I  verbally  agree  to 
pay  a  man  a  certain  price  for  a  certain  parcel  of  goods,  and 
fail  in  the  performance,  an  action  of  debt  lies  against  me, 
for  this  is  also  a  determinate  contract;  but  if  I  agree  for  no 
settled  price,  I  am  not  liable  to  an  action  of  debt,  but  a 
special  action  on  the  case,  according  to  the  nature  of  my 
contract.  And  indeed  actions  of  debt  are  now  seldom 
brought  but  upon  special  contracts  under  seal,  wherein  the 
sum  due  is  clearly  and  precisely  expressed;  for,  in  case  of 
such  an  action  upon  a  simple  contract,  the  plaintiff  labors 
under  two  difficulties.  First,  the  defendant  has  here  the 
same  advantage  as  in  an  action  of  detinue,  that  of  waging 
his  law,  or  purging  himself  of  the  debt  by  oath,  if  he  thinks 
proper.  [Obsolete.]  Secondly,  in  an  action  of  debt  the 
plaintiff  must  prove  the  whole  debt  he  claims,  or  recover 
nothing  at  all.  For  the  debt  is  one  single  cause  of  action, 
fixed  and  determined;  and  which,  therefore,  if  the  proof 
varies  from  the  claim,  cannot  be  looked  upon  as  the  same 
contract  whereof  the  performance  is  sued  for.  If,  there- 
fore, I  bring  an  action  of  debt  for  30/.,  I  am  not  at  liberty 
to  prove  a  debt  of  20^.  and  recover  a  verdict  thereon,  any 
more  than  if  I  bring  an  action  of  detinue  for  a  horse,  I  can 
thereby  recover  an  ox,  —  for  I  fail  in  the  proof  of  that  con- 
tract which  my  action  or  complaint  has  alleged  to  be 
specific,  express,  and  determinate.^  But  in  an  action  on  the 
case,  on  what  is  called  an  indebitatus  assumpsit,  which  is 
not  brought  to  compel  a  specific  performance  of  the  con- 
tract, but  to  recover  damages  for  its  non-performance,  the 
implied  assumpit,  and  consequently  the  damages  for  the 
breach  of  it,  are  in  their  nature  indeterminate,  and  will 
therefore  adapt  and  proportion  themselves  to  the  truth  of 
the  case  which  shall  be  proved,  without  being  confined  to 
the  precise  demand  stated  in  the  declaration.  [155]     For 

4.  The  action  of  debt  is  still  in  use  low.      See    Puterburgh's    Com.    Law, 

in  Michigan  and  Illinois  and  perhaps  Plead.  &  Practice    (7th  Ed.),  425j   1 

ether  states.    It  is  now,  however,  con-  Green's   New   Prae.,   *68. 
current  with  assumpsit  described  be- 


498  Of  Injuries  to  Personal  Property.     [Book  III. 

if  any  debt  be  proved,  however  less  than  the  sum  demanded, 
the  law  will  raise  a  promise  pro  tanto,  and  the  damages 
will  of  course  be  proportioned  to  the  actual  debt.  So  that 
I  may  declare  that  the  defendant,  heinr/  indebted  to  me  in 
301.  undertook  or  promised  to  pay  it,  but  failed;  and  lay 
my  damages  arising  from  such  failure  at  what  sum  I  please, 
and  the  jury  will,  according  to  the  nature  of  my  proof, 
allow  me  either  the  whole  in  damages,  or  any  inferior  sum.^ 
And  even  in  actions  of  debt,  where  the  contract  is  proved 
or  admitted,  if  the  defendant  can  show  that  he  has  dis- 
charged any  part  of  it,  the  plaintiff  shall  recover  the 
residue. 

The  form  of  the  writ  of  debt  is  sometimes  in  the  debet 
and  detinet,  and  sometimes  in  the  detinet  only,  that  is,  the 
writ  states  either  that  the  defendant  oii?es  and  unjustly 
detains  the  debt  or  thing  in  question,  or  only  that  he  un- 
justly detains  it.  It  is  brought  in  the  debet  as  well  as 
d-etinet  when  sued  by  one  of  the  original  contracting  parties 
who  personally  gave  the  credit  against  the  other  who  per- 
sonally incurred  the  debt,  or  against  his  heirs  if  they  are 
bound  to  the  payment;  as  by  the  obligee  against  the  obligor, 
the  landlord  against  the  tenant,  &c.  But  if  it  be  brought 
by  or  against  an  executor  for  a  debt  due  to  or  from  thQ 
testator,  this,  not  being  his  own  debt,  shall  be  sued  for  in 
the  detinet  only.  So  also  if  the  action  be  for  goods,  or  corn, 
or  a  horse,  the  writ  shall  be  in  the  detinet  only;  for  nothing 
but  a  sum  of  money,  for  which  I  (or  my  ancestors  in  my 
name)  have  personally  contracted,  is  properly  considered 
as  my  debt.  And  indeed  a  writ  of  debt  in  the  detinet  only, 
for  goods  and  chattels,  is  neither  more  nor  less  than  a  mere 
writ  of  detinue,  and  is  followed  by  the  very  same  judgment. 

2.  A  covenant  also,  contained  in  a  deed,  to  do  a  direct  act 
or  to  omit  one,  is  another  species  of  express  contracts,  the 
violation  or  breach  of  which  is  a  civil  injury.  As  if  a  man 
covenants  to  be  at  York  by  such  a  day,  or  not  to  exercise 

5.  The    action    of   trespass    on    the  other    states.      See    1    Green's    New 

case  upon  promises,  or  assumpsit,  as  Pract.   '66;    Puterburgh's  Com.  Law, 

it  is  usually  styled,  is  in  common  use  Plead.  &  Prac.  (7th  Ed.),  ch  4,  p.  70. 
in  Michigan  and  Illinois  and  possibly 


Chap.  IX.]     Of  Injuries  to  Personal  Property.  499 

a  trade  in  a  particular  place,  and  is  not  at  York  at  the  time 
appointed,  or  carries  on  liis  trade  in  the  place  forbidden, 
these  are  direct  breaches  of  his  covenant,  and  may  be,  per- 
haps, greatly  to  the  disadvantage  and  loss  of  the  coven- 
antee. [156]  The  remedy  for  this  is  by  a  writ  of  covenant, 
which  directs  the  sheriff  to  command  the  defendant  gen- 
erally to  keep  his  covenant  with  the  plaintiff  (without 
specifying  the  nature  of  the  covenant),  or  show  good  cause 
to  the  contrary;  and  if  he  continues  refractory,  or  the  coven- 
ant is  already  so  broken  that  it  cannot  now  be  specifically 
performed,  then  the  subsequent  proceedings  set  forth  with 
precision  the  covenant,  the  breach,  and  the  loss  which  has 
happened  thereby;  whereupon  the  jury  will  give  damages 
in  proportion  to  the  injury  sustained  by  the  plaintiff  and 
occasioned  by  such  breach  of  the  defendant's  contract.^ 

There  is  one  species  of  covenant  of  a  different  nature 
from  the  rest,  and  that  is  a  covenant  real  to  convey  or  dis- 
pose of  lands,  which  seems  to  be  partly  of  a  personal  and 
partly  of  the  real  nature.  For  this  the  remedy  is  by  a 
special  writ  of  covenant  for  a  specific  performance  of  the 
contract  concerning  certain  lands  particularly  described  in 
the  writ.'^ 

No  person  could  at  common  law  take  advantage  of  any 
covenant  or  condition,  except  such  as  were  parties  or  privies 
thereto,  and,  of  course,  no  grantee  or  assignee  of  any  re- 
version or  rent.  To  remedy  which,  and  more  effectually  to 
secure  to  the  king's  grantees  the  spoils  of  the  monasteries 
than  newly  dissolved,  the  statute  32  Hen.  VIII.  c.  34,^  gives 
the  assignee  of  a  reversion  (after  notice  of  such  assign- 
ment) the  same  remedies  against  the  particular  tenant,  by 
entry  or  action,  for  waste  or  other  forfeitures,  non-payment 

6.  The   action   of   covenant    is   also  7.  The  remedy  now  would  be  by  bill 

in  use  in  Illinois,  Michigan  and  pos-  in   equity   for   a  specific  performance 

sibly  other  states.     See  Puterburgh's  of  the  contract.     This  subject  will  be 

Com.    Law,    Plead.    &    Practice     (7th  more  fully  considered  in  vol.  2  of  this 

Ed.),   ch.   7,   p.   264;    1   Green's   New  series. 

Praet.  *6S.     In  Michigan  this  action  8.  See,    generally,    1    Wash.     Real 

is,   by   statute,    now   concurrent   with  Prop.   *327 ;    Spencer's   Case,   5    Coke 

assumpsit.  Id.,  68;  Howell's  Stat-  Rep.  16;  1  Smith's  Lead.  Cases,  *116. 
utes,   1945. 


500  Of  Injuries  to  Personal  Property.     [Book  TIT. 

of  rent,  and  non-pcrforraance  of  conditions,  covenants,  and 
agreements,  as  the  assignor  himself  might  have  had,  and 
makes  him  equally  liable,  on  the  other  hand,  for  acts  agreed 
to  be  i)erformed  by  the  assignor,  except  in  the  case  of 
warranty. 

3.  A  promise  is  in  the  nature  of  a  verbal  covenant,  and 
wants  nothing  but  the  solmenity  of  writing  and  sealing  to 
make  it  absolutely  the  same.  If,  therefore,  it  be  to  do  any 
explicit  act,  it  is  an  express  contract  as  much  as  any  coven- 
ant, and  the  breach  of  it  is  an  equal  injury.  The  remedy 
is  by  an  action  upon  the  case*  for  what  is  called  the  assump- 
sit, or  undertaking  of  the  defendant,  the  failure  of  perform- 
ing whicli  is  the  wrong  or  injury  done  to  the  plaintiff,  the 
damages  whereof  a  jury  are  to  estimate  and  settle.  And 
if  a  builder  promises,  undertakes,  or  assumes  to  Caius  [for 
a  valuable  consideration]^  that  he  will  build  and  cover  his 
houses  within  a  time  limited,  and  fails  to  do  it,  Caius  has 
an  action  on  the  case  against  the  builder  for  this  breach 
of  his  express  promise,  undertaking,  or  assumpsit,  and  shall 
recover  a  pecuniary  satisfaction  for  the  injury  sustained 
by  such  delay.  So  also  in  the  case,  before  mentioned,  of  a 
debt  bj^  simple  contract,  if  the  debtor  promises  to  pay  it 
and  does  not,  this  breach  of  promise  entitles  the  creditor 
to  his  action  on  the  case,  instead  of  being  driven  to  an 
action  of  debt.  Thus  likewise  a  promissory  note,  or  note 
of  hand  not  under  seal,  to  pay  money  at  a  day  certain,  is 
an  express  assumpsit;  and  the  payee  at  common  law,  or  by 
custom  and  act  of  parliament  the  indorsee,  may  recover  the 
value  of  the  note  in  damages  if  it  remains  unpaid.  Some 
agreements,  indeed,  though  never  so  expressly  made,  are 
deemed  of  so  important  a  nature  that  they  ought  not  to 
rest  in  verbal  promise  only,  which  cannot  be  proved  but  by 
the  memory  (which  sometimes  will  induce  the  perjury)  of 
witnesses.  To  prevent  which  the  statute  of  frauds  and  per- 
juries, 29  Car.  II.  c.  3,  enacts  that  in  the  five  following  cases 
no  verbal  promise  shall  be  sufficient  to  ground  an  action 
upon,  but  at  the  least  some  note  or  memorandum  of  it  shall 

9.  A  valuable  consideration  must  enforcible  at  law.  See  aute,  Con- 
be  averred  and  proved,  or  the  prom-  tracts  and  post,  vol.  2  of  this  series, 
ise  will  be  a  mere  nudum  pactum  not 


Chap.  IX.]      Of  TjsMriuEs  to  Pkusoxat.  rROPEUTY.  50t 

be  made  in  writing,  and  signed  by  the  party  to  be  charged 
therewith:  1.  Where  an  executor  or  administrator  prom- 
ises to  answer  damages  out  of  his  own  estate.  [158]  2. 
Where  a  man  undertakes  to  answer  for  the  debt,  default,  or 
miscarriage  of  another.  3.  Where  any  agreement  is  mads 
upon  consideration  of  marriage.  4.  Where  any  contract  or 
sale  is  made  of  lands,  tenements,  or  hereditaments,  or  any 
interest  therein.  5.  And  lastly,  where  there  is  any  agree- 
ment that  is  not  to  be  performed  within  a  year  from  the 
making  thereof.  In  all  these  cases  a  mere  verbal  assumpsit 
is  void.^ 

Contracts  implied  bj  law  are  such  as  reason  and  justice 
dictate,  and  which  therefore  the  law  presumes  that  every 
man  has  contracted  to  perform;  and  upon  this  presumption 
makes  him  answerable  to  such  persons  as  suffer  by  his  non- 
performance. 

Of  this  nature  are,  first,  such  as  are  necessarily  implied 
by  the  fundamental  constitution  of  government,  to  which 
every  man  is  a  contracting  party.  And  thus  it  is  that  every 
person  is  bound  and  hath  virtually  agreed  to  pay  such  par- 
ticular sums  of  money  as  are  charged  on  him  by  the  sen- 
tence, or  assessed  by  the  interpretation  of  the  law.  What- 
ever, therefore,  the  laws  order  any  one  to  pay,  that  becomes 
instantly  a  debt,  which  he  hath  beforehand  contracted  to 
discharge.  And  this  implied  agreement  it  is  that  gives  the 
plaintiff  a  right  to  institute  a  second  action,  founded  merely 
on  the  general  contract,  in  order  to  recover  such  damages 
or  sum  of  money  as  are  assessed  by  the  jury  and  adjudged 
by  the  court  to  be  due  from  the  defendant  to  the  plaintiff 
in  any  former  action.  So  that  if  he  hath  once  obtained  a 
judgment  against  another  for  a  certain  sum,  and  neglects 
to  take  out  execution  thereupon,  he  may  afterwards  bring 
an  action  of  debt  upon  this  judgment,^  and  shall  not  be  put 
upon  the  proof  of  the  original  cause  of  action;  but  upon 

1.  This  section    (4)    of  the  Statute  2.  See   1  Green's  New  Pract.   *68; 

of  Frauds  has  been  re-enacted  in  sub-  Puterburgh's     Com.    Law,    Plead.    & 

stance  in  most,  if  not  all,  the  states.  Prac.    (7th  Ed.),  440,  where  wiU  b8 

See,    generally,    Clark    on    Contracts  found  forms  of  declarations  on  judg- 

(3d  Ed.),  80-121  and  cases  cited.   See  menta. 
vol.  2  of  this  series,  title  Contracts. 


502  Of  Injuries  to  Personal  Property.     [Book  III. 

showing  the  judgment  once  obtained,  still  in  full  force,  and 
yet  unsatisfied,  the  law  immediately  implies  that  by  the 
original  contract  of  society  the  defendant  hath  contracted 
a  debt  and  is  bound  to  pay  it.  [159] 

On  the  same  principle  it  is  that  a  forfeiture  imposed  by 
the  by-laws  and  private  ordinances  of  a  corporation  upon 
any  that  belong  to  the  body,  or  an  amercement  set  in  a 
court-leet  or  court-baron  upon  any  of  the  suitors  to  the 
court  (for  otherwise  it  will  not  be  binding),  immediately 
create  a  debt  in  the  eyes  of  the  law,  for  non-payment  of 
which  the  remedy  is  by  action  of  debt.^ 

The  same  reason  may  with  equal  justice  be  applied  to 
all  penal  statutes,  that  is,  such  acts  of  parliament  Avhereby 
a  forfeiture  is  inflicted  for  transgressing  the  provisions 
therein  enacted.  Usually  these  forfeitures  created  by  stat- 
utte  are  given  at  large  to  any  common  informer,  or,  in  other 
words,  to  any  such  person  or  persons  as  will  sue  for  the 
same;  and  hence  such  actions  are  called  popular  actions, 
because  they  are  given  to  the  people  in  geheral.  [160] 
Sometimes  one  part  is  given  to  the  king,  to  the  poor,  or  to 
some  public  use,  and  the  other  part  to  the  informer  or 
prosecutor;  and  then  the  suit  is  called  a  qui  tam  action, 
because  it  is  brought  by  a  person  "  qui  tam  pro  domino  rege, 
&c.,  quam  pro  sc  ipso  in  hac  parte  scquitiir."  If  the  king, 
therefore,  himself  commences  this  suit  he  shall  haVe  the 
whole  forfeiture.  But  if  any  one  hath  begun  a  qui  tam  or 
popular  action,  no  other  person  can  pursue  it,  and  the  verdict 
passed  upon  the  defendant  in  the  first  suit  is  a  bar  to  all 
others,  and  conclusive  even  to  the  king  himself.  This  has 
frequently  occasioned  offenders  to  procure  their  own  friends 
to  begin  a  suit,  in  order  to  forestall  and  prevent  other  ac- 
tions; which  practice  is  in  some  measure  prevented  by  a 
statute  made  in  the  reign  of  a  very  sharp-sighted  prince  in 
penal  laws,  4  Hen.  VII.  c.  20,  which  enacts  that  no  recovery, 
otlurwise  than  by  verdict  obtained  by  collusion  in  an  action 
popular,  shall  be  a  bar  to  any  other  action  prosecuted  bona 
fide. 

3.  See     Puterburgh's     Com.     Law, 
Plead.  &  Prac.  (7th  Ed.),  ch.  13. 


Chap.  IX.]     Of  Injuries  to  Personal  Property.  603 

A  second  class  of  implied  contracts  are  such  as  do  not 
arise  from  the  express  determination  of  any  court  or  the 
positive  direction  of  any  statute,  but  from  natural  reason 
and  the  just  construction  of  law  [161] ;  which  class  extends 
to  all  presumptive  undertakings  or  assumpsits,  which, 
though  never  perhaps  actually  made,  yet  constantly  arise 
from  the  general  implication  and  intendment  of  the  courts 
of  judicature,  that  every  man  hath  engaged  to  perform 
what  his  duty  or  justice  requires.     Thus, 

1.  If  I  employ  a  person  to  transact  my  business  for  me, 
or  perform  any  work,  the  law  implies  that  I  undertook  or 
assumed  to  pay  him  so  much  as  his  labor  deserved.  And 
if  I  neglect  to  make  him  amends  he  has  a  remedy  for  this 
injury  by  bringing  his  action  on  the  case  upon  this  implied 
assumpsit,  wherein  he  is  at  liberty  to  suggest  that  I  prom- 
ised to  pay  him  so  much  as  he  reasonably  deserved,  and 
then  to  aver  that  his  trouble  was  really  worth  such  a  par- 
ticular sum,  which  the  defendant  has  omitted  to  pay.  But 
this  valuation  of  his  trouble  is  submitted  to  the  determina- 
tion of  a  jury,  who  will  assess  such  a  sum  in  damages  as 
they  think  he  really  merited.  This  is  called  an  assumpsit 
on  a  quantum  meruit. 

2.  There  is  also  an  implied  assumpsit  on  a  quantum 
valebat  which  is  very  similar  to  the  former,  being  only 
where  one  takes  up  goods  or  wares  of  a  tradesman  without 
expressly  agreeing  for  the  price.  There  the  law  concludes 
that  both  parties  did  intentionally  agree  that  the  real  value 
of  the  goods  should  be  paid,  and  an  action  on  the  case  may 
be  brought  accordingly  if  the  vendee  refuses  to  pay  that 
value. 

3.  A  third  species  of  implied  assumpsits  is  when  one  has 
had  and  received  money  belonging  to  another  without  any 
valuable  consideration  given  on  the  receiver's  part,  for  the 
law  construes  this  to  be  money  had  and  received  for  the 
use  of  the  owner  only,  and  implies  that  the  person  so  receiv- 
ing promised  and  undertook  to  account  for  it  to  the  true 
proprietor.  [162]  And  if  he  unjustl}^  detains  it,  an  action 
on  the  case  lies  against  him  for  the  breach  of  such  implied 
promise  and  undertaking,  and  he  will  be  made  to  repay  the 


504  Of  Injuries  to  Personal  Property.      [Book  III. 

owner  in  damages  equivalent  to  what  he  has  detained  in 
violation  of  such  his  promise.  This  is  a  very  extensive 
and  beneficial  remedy,  applicable  to  almost  every  cas3 
where  the  defendant  has  received  money  which  ex  aequo  et 
bono  he  ought  to  refund.  It  lies  for  money  paid  by  mistake 
or  on  a  consideration  which  happens  to  fail,  or  through  im- 
position, extortion,  or  oppression,  or  where  any  undue  ad- 
vantage is  taken  of  the  plaintiff's  situation. 

4.  Where  a  person  has  laid  out  and  expended  his  own 
money  for  the  use  of  another  at  his  request  the  law  implies 
a  promise  of  repayment,  and  an  action  will  lie  on  this 
assumpsit. 

5.  Likewise,  upon  a  stated  account  between  two  merch- 
ants or  other  persons,  the  law  implies  that  he  against  whom 
the  balance  appears  has  engaged  to  pay  it  to  the  other, 
though  there  be  not  any  actual  promise.  And  from  this 
implication  it  is  frequent  for  actions  on  the  case  to  be 
brought,  declaring  that  the  plaintiff  and  defendant  had 
settled  their  accounts  together,  insimul  computassent 
(which  gives  name  to  this  species  of  assumpsit),  and  that 
the  defendant  engaged  to  pay  the  plaintiff  the  balance,  but 
has  since  neglected  to  do  it.* 

But  if  no  account  has  been  made  up,  then  the  legal  remedy  is  by  bring- 
ing a  ■writ  of  account,^  de  compiito,  commanding  the  defendant  to  render 
a  just  account  to  the  plaintiff  or  show  the  court  good  cause  to  the  con- 
trary. [163]  In  this  action,  if  the  plaintiff  succeeds,  there  are  two  judg- 
ments. The  first  is,  that  the  defendant  do  account  {quod  computet)  be- 
fore auditors  appointed  by  the  court;  and,  when  such  amount  is  finished, 
then  the  second  judgment  is-,  that  he  do  pay  the  plaintiff  so  much  as  he 
is  found  in  arrear.  This  action,  by  the  old  common  law,  lay  only  against 
the  parties  themselves  and  not  their  executors,  because  matters  of  ac- 

4.  The    foregoing    constitute    wliat  Puterburgli's    Com.    Law,    Plead.    &. 

are  called  the  common  counts  in  as-  Prac.   (7th  Ed.),  76-86,  for  a  variety 

sumpsit  and,  as  a  matter  of  routine  of    common    counts;    1    Green's    Ntw^ 

practice,    should    be    found    in    every  Prac.  186,  187;  2  id.  1173-1192. 
declaration  in  assumpsit  upon  a  con-  5.  Tliis   action    is   obsolete   in  most 

tract    wholly   executed   on^  the   plain-  of    the    states,    but    not    in    Illinois, 

tiff's  side  and  where  nothing  remains  though     it    is    rarely    brought.      See 

to  be  done  on  the  part  of  the  defend-  Puterburgli's    Com.     Law,     Plead.-    & 

ant  but  the  payment  of  money.     See  Prac.   (7tli  Ed.),  ch.  6. 


Cjiap.  IX.]     Of  Injuries  to  Personal  Property.  505 

count  rested  solely  on  their  own  knowledge.  But  this  defect,  after  many 
fruitless  attempts  in  parliament,  was  at  last  remedied  by  statute  4  Anne, 
c.  16,  which  gives  an  action  of  account  against  the  executors  and  adminis- 
trators. But,  however,  it  is  found  by  experience  that  the  most  ready  and 
effectual  waj  to  settle  these  matters  of  account  is  by  a  bill  in  a  court  of 
equity,  where  a  discovery  may  be  had  on  the  defendant's  oath,  without 
relying  merely  on  the  evidence  which  the  plaintiff  may  be  able  to  pro- 
duce.® 

6.  The  last  class  of  implied  contracts  arises  upon  this 
supposition,  that  every  one  who  undertakes  any  office,  em- 
ployment, trust,  or  duty,  contracts  with  those  who  employ 
or  entrust  him  to  perform  it  with  integrity,  diligence,  and 
skill.  And  if,  by  his  want  of  either  of  those  qualities,  any 
injury  accrues  to  individuals,  they  have  therefore  their 
remedy  in  damages  by  a  special  action  on  the  case.  A  few 
instances  will  fully  illustrate  this  matter.  If  an  officer  of 
the  public  is  guilty  of  neglect  of  duty,  or  a  palpable  breach 
of  it,  of  nonfeasance  or  of  misfeasance,  as,  if  the  sheriff  does 
ijot  execute  a  writ  sent  to  him,  or  if  he  wilfully  makes  a 
false  return  thereof,  in  both  these  cases  the  party  aggrieved 
shall  have  an  action  on  the  case  for  damages  to  be  assessed 
by  a  jury.  If  a  sheriff  or  gaoler  suffers  a  prisoner,  who  is 
taken  up  on  mesne  process  (that  is,  during  the  pendency  of 
a  suit),  to  escape,  he  is  liable  to  an  action  on  the  case.  [164] 
But  if,  after  judgment,  a  gaoler  or  a  sheriff  permits  a  debtor 
to  escape  who  is  charged  in  execution  for  a  certain  sum,  the 
debt  immediately  becomes  his  own,  and  he  is  compellable  by 
action  of  debt,  being  for  a  sum  liquidated  and  ascertained,  to 
satisfy  the  creditor  his  whole  demand,  which  doctrine  is 
grounded  on  the  equity  of  the  statute  of  Westm.  2,  13 
Edw.  I.  c.  11,  and  1  Eic.  II.  c.  12.  An  advocate  or  attorney 
that  betrays  the  cause  of  his  client,  or,  being  retained,  neg- 
lects to  appear  at  the  trial,  by  which  the  cause  miscarries, 
is  liable  to  an  action  on  the  case  for  reparation  to  his  in- 
jured client.'  There  is  also  in  law  always  an  implied  con- 
tract with  a  common  innkeeper  to  secure  his  guest's  goods 
in  his  inn;  with  a  common  carrier^  or  bargemaster  to  be  an- 

6.  See  Puterburgh's  PI.   &  Pr.,  Id.      men,  generally,  Cooley  on  Torts  (Stu- 

7.  See,  as  to  liability  for  negligence  dents'  Ed.),  668-674  and  cases  cited, 
of   fekilled   workmen   and   professional  8.  See  ante,  Bailinents. 


506  Or  Injuries  to  Personal  Property.     [Book  111. 

swerable  for  the  goods  he  carries;  with  a  common  famer, 
that  he  shoes  a  horse  well  without  laming  him;  with  a 
common  tailor,  or  other  workman,  that  he  performs  hia 
business  in  a  workmanlike  manner, —  in  which,  if  they  fail, 
an  action  on  the  case  lies  to  recover  damages  for  such 
breach  of  their  general  undertaking.  But  if  I  employ  a 
person  to  transact  any  of  these  concerns,  whose  common 
profession  and  business  it  is  not,  the  law  implies  no  such 
general  undertaking,  but,  in  order  to  charge  him  with  dam- 
ajj^es,  a  special  agreement  is  required.  Also,  if  an  inn- 
keeper or  other  victualler  hangs  out  a  sign  and  opens 
his  house  for  travelers,  it  is  an  implied  engagement 
to  entertain  all  persons  who  travel  that  w^ay;  and  upon  this 
universal  assumpsit  an  action  on  the  case  will  lie  against 
him  for  damages  if  he  without  good  reason  refuses  to  ad- 
mit a  traveller.^  If  any  one  cheats  me  with  false  cards  or 
dice,  or  by  false  weights  and  measures,  or  by  selling  me  one 
commodity  for  another,  an  action  on  the  case  also  lies 
against  him  for  damages  upon  the  contract  which  the  law 
always  implies,  that  every  transaction  is  fair  and  honest. 

In  contracts,  likewise,  for  sales,  it  is  constantly  under- 
stood that  the  seller  undertakes  that  the  commodity  he 
sells  is  his  own,  and  if  it  proves  otherwise  an  action  on  the 
case  lies  against  him  to  exact  damages  for  this  deceit.  [165] 
In  contracts  for  provisions  it  is  always  implied  that  they 
are  wholesome,  and  if  they  be  not  the  same  remedy  may  be 
had.  Also,  if  he  that  selleth  anything  doth  upon  the  sale 
warrant  it  to  be  good  the  law  annexes  a  tacit  contract  to 
his  warranty  that  if  it  be  not  so  he  shall  make  compensa- 
tion to  the  buyer,  else  it  is  an  injury  to  good  faith,  for  which 
an  action  on  the  case  will  lie  to  recover  damages.  The 
warranty  must  be  upon  the  sale,  for  if  it  be  made  after  and 
not  at  the  time  of  the  sale  it  is  a  void  warranty;  for  it  is 
then  made  without  any  consideration,  neither  does  the 
buyer  then  take  the  goods  upon  the  credit  of  the  vendor. 
Also  the  warranty  can  only  reach  to  things  in  being  at  the 
time  of  the  warranty  made,  and  not  to  things  in  futoro, 
as,  that  a  horse  is  sound  at  the  buying  of  him,  not  that  he 

9.  tooley  on  Torts  (Studi-nts'  Ed.), 
305. 


Chap.  IX.]     Of  Injuries  to  Personal  Property.  507 

tvill  he  sound  two  years  hence.  .  But  if  the  vendor  knew 
the  goods  to  be  unsound,  and  hath  used  any  art  to  disguise 
them,  or  if  they  are  in  any  shape  different  from  what  he 
represents  them  to  be  to  the  buyer,  this  artifice  shall 
be  equivalent  to  an  express  warranty,  and  the  vendor 
is  answerable  for  their  goodness.  A  general  warranty 
will  not  extend  to  guard  against  defects  that  are  plainly  and 
obviously  the  object  of  one's  senses,  as  if  a  horse  be  war- 
ranted perfect  and  wants  either  a  tail  or  an  ear,  unless  the 
buyer  in  this  case  be  blind.  But  if  cloth  is  warranted  to 
be  of  such  a  length  when  it  is  not,  there  an  action  on  the 
case  lies  for  damages ;  for  that  cannot  be  discerned  by  sight, 
but  onl}'"  by  a  collateral  proof,  the  measuring  it.  Also,  if 
a  horse  is  w^arranted  sound,  and  he  wants  the  sight  of  an 
eye,  |hough  this  seems  to  be  the  object  of  one's  senses,  yet 
as  the  discernment  of  such  defects  is  frequently  matter  of 
skill,  it  hath  been  held  that  an  action  on  the  case  lieth  to 
recover  damages  for  this  impo&ition.^ 

Besides  the  special  action  on  the  case,  there  is  also  a  peculiar  remedy 
entitled  an  action  of  deceit  [obsolete],  to  give  damages  in  some  particular 
cases  of  fraud,  and  principally  where  one  man  does  anything  in  the 
name  of  another  by  which  he  is  deceived  or  injured,  as  if  one  brings  an 
action  in  another's  name,  and  then  suffers  nonsuit,  whei^eby  the  plain- 
tiff becomes  liable  to  costs;  or  where  one  obtains  or  suffer^  a  fraudulent 
recovery  of  lands,  tenements,  or  chattels,  to  the  prejudice  of  him  that 
hath  right.  [166]  It  also  lies  in  the  cases  of  warranty  before  mentioned, 
and  other  personal  injuries  committed  contrary  to  good  faith  and  honesty. 
But  an  action  on  the  case  for  damages  in  nature  of  a  >vrit  of  deceit  is 
more  usually  brought  upon  these  occasions.^ 

1.  See  ante,  Contracts  and  vol.  2  of  sumpsit  on  the  warranty  or  ca^e  for 

this  series,  Warranty.  the  deceit.     See,  generally,  Cooley  on 

Where  a  warranty  is  both  false  and  Torts  (Students'  Ed.),  ch.  15,  p.  460. 
fraudulent,  i.  e.,  when  tlie  vendor  2.  See  note  ( 1 )  above, 
either  knows  that  his  representations,  In  those  states  which,  following  New 
being-  material,  were  false  or  consci-  York,  liave  so-called  codes  of  procedure 
ously  liad  no  knowledge  on  the  sub-  the  several  forms  of  action  described 
ject  but  still  made  a  false  and  mate-  in  this  chapter  have  been  abolished 
rial  representation  as  to  a  matter  and  one  form  of  proceeding  called  a 
susceptible  of  knowledge,  with  intent  "  civil  action  "  adopted  for  all  cases, 
that  another  should  rely  upon  such  The  real  essence  of  the  injuries  corn- 
representation  who  in  fact  did  rely  plained  of  remains  the  same,  however, 
on  it  to  his  damage,  the  plaintiff  has  in  both  cases, 
his  election  to  bring  an  action  of  as- 


>08  Op  Injuries  to  Real  Pkopekty.       [Book  HI. 


CHAPTER  X. 

OF    INJURIES    TO    REAL    PROPERTY;    AND    FIRST    OF    DISPOSSESSION, 
OR  OUSTER  OF  THE  FREEHOLD. 

Real  injuries,  or  injuries  affecting  real  rights,  are  prin- 
cipally six:  1.  Ouster;  2.  Trespass;  3.  Nuisance;  4. 
Waste;    5.  Subtraction;    6.  Disturbance.   [167] 

Ouster,  or  dispossession,  is  a  wrong  or  injury  that  car- 
ries with  it  the  amotion  of  possession;  for  thereby  the 
wrongdoer  gets  into  the  actual  occupation  of  the  land  or 
hereditament,  and  obliges  him  that  hath  a  right  to  seek 
his  legal  remedy,  in  order  to  gain  possession,  and  damages 
for  the  injury  sustained.  And  such  ouster,  or  dispc^pses- 
sion,  may  either  be  of  the  freehold,  or  of  chattels  real. 
Ouster  of  the  freehold  is  effected  by  one  of  the  following 
methods:  1.  Abatement;  2-.  Intrusion;  3.  Disseisin;  4.  Dis- 
continuance; 5.  Deforcement,  —  all  of  which  in  their  order, 
and  afterwards  their  respective  remedies,  will  be  con- 
sidered in  the  present  chapter. 

1.  And  first,  an  abatement  is  where  a  person  dies  seised 
of  an  inheritance,  and  before  the  heir  or  devisee  enters,  a 
stranger  who  has  no  right  makes  entry,  and  gets  possession 
of  the  freehold.  This  entry  of  him  is  called  an  abatement, 
and  he  himself  is  denominated  an  abator.   [168] 

2.  The  second  species  of  injury,  by  ouster,  or  amotion  of 
possession  from  the  freehold,  is  by  intrusion,  which  is  the 
entry  of  a  stranger,  after  a  particular  estate  of  freehold  is 
determined,  before  him  in  remainder  or  reversion.  [169] 
This  entry  and  interposition  of  the  stranger  differ  from  an 
abatement  in  this,  that  an  abatement  is  always  to  the  preju- 
dice of  the  heir,  or  immediate  devisee,  an  intrusion  is  always 
to  the  prejudice  of  him  in  remainder  or  reversion. 

3.  The  third  species  of  injury  by  ouster,  or  privation  of. 
the  freehold,  is  by  disseisin.  Disseisin  is  a  wrongful  put- 
ting out  of  him  that  is  seised  of  the  freehold.  The  two 
former  species  of  injury  were  by  a  wrongful  entry  where 
the  possession  was  vacant;  but  this  is  an  attack  upon  him 


Chap.  X.]  Of  Injuries  to  Real  Property.  609 

who  is  in  actual  possession,  and  turning  liim  out  of  it. 
Disseisin  of  things  corporeal,  as  of  houses,  lands,  &c.,  must 
be  by  entry  and  actual  dispossession  of  the  freehold.  [170] 
Disseisin  of  incorporeal  hereditaments  cannot  be  an  actual 
dispossession,  for  the  subject  itself  is  neither  capable  of 
actual  bodily  possession  or  dispossession;  but  it  depends^ 
on  their  respective  natures  and  various  kinds,  being  in 
general  nothing  more  than  a  disturbance  of  the  owner  in 
the  means  of  coming  at  or  enjoying  them.  But  all  these 
disseisins,  of  hereditaments  incorporeal,  are  only  so  at  the 
election  and  choice  of  the  party  injured,  if,  for  the  sake 
of  more  easily  trying  the  right,  he  is  pleased  to  suppose 
himself  disseised. 

Two  remaining  species  of  injury  are  where  the  entry  of 
the  tenant  was  at  first  lawful,  but  the  wrong  consists  in 
the  detaining  of  possession  afterwards.  [171] 

4,  Such  is,  fourthly,  the  injury  of  discontinuance,  which  happens  when 
he  who  hath  an  estate-tail  maketh  a  larger  estate  of  the  land  than  by  law 
he  is  entitled  to  do,  in  which  case  the  estate  is  good  so  far  as  his  power 
extends  who  made  it,  but  no  farther.  As  if  tenant  In  tail  makes  a  feoff- 
ment in  fee-simple,  or  for  the  life  of  the  feoffee,  or  in  tail,  all  which  are 
beyond  his  power  to  make,  for  that  by  the  common  law  extends  no  farther 
than  to  make  a  lease  for  his  own  life, — in  such  case  the  entry  of  the 
feoffee  is  lawful  during  the  life  of  the  feoffor.  But  if  he  retains  the  pos- 
session after  the  death  of  the  feoffor,  it  is  an  injury  which  is  termed  a 
discontinuance,  the  ancient  legal  estate  which  ought  to  have  survived 
to  the  heir  in  tail,  being  gone,  or  at  least  suspended,  and  for  a  while 
discontinued.  [172] 

5.  The  fifth  and  last  species  of  injuries,  by  ouster,  or  privation  of  the 
freehold,  where  the  entry  of  the  present  tenant  or  possessor  was  origi- 
nally lawful,  but  his  detainer  is  now  become  unlawful,  is  that  by  deforce- 
ment. This,  in  its  most  extensive  sense,  is  nomen  generalissimum, — a  much 
larger  and  more  comprehensive  expression  than  any  of  the  former,  it  then 
signifying  the  holding  of  any  lands  or  tenements  to  which  another  person 
hath  a  right.  So  that  this  includes  as  well  an  abatement,  an  intrusion, 
a  disseisin,  or  a  discontinuance,  as  any  other  species  of  wrong  whatso- 
ever, whereby  he  that  hath  right  to  the  freehold  is  kept  out  of  possession. 
But.  as  contradistinguished  from  the  former,  it  is  only  such  a  detainer 
of  the  freehold,  from  him  that  hath  the  right  of  property,  but  never  had 
any  possession  under  that  right,  as  falls  within  none  of  the  injuries 
which  we  have  before  explained.  [173] 


510  Of  Injuries  to  Real  Property.       [Book  III. 

The  remedy  for  the  several  species  of  ouster  is  univer- 
sally the  restitution  of  possession,  and  in  some  cases  dam- 
ages also.  The  methods  of  obtaining  a  remedy  are  various: 
1.  The  first  is  that  of  entry  by  the  legal  owner,  when  au- 
other  person,  who  hath  no  right,  hath  previously  taken 
possession  of  lands  or  tenements.  [174]  In  this  case  the 
party  entitled  may  make  a  formal,  but  peaceable,  entry 
thereon,  declaring  that  thereby  he  takes  possession;  or  he 
may  enter  on  any  part  of  it  in  the  same  county,  declaring 
it  to  be  in  the  name  of  the  Avhole;  but  if  it  lies  in  different 
counties  he  must  make  different  entries.  [175]  Also  if 
there  be  two  disseisors,  the  party  disseised  must  make  his 
entry  on  both;  or  if  one  disseisor  has  conveyed  the  lands 
with  livery  to  two  distinct  feoffees,  entry  must  be  made  on 
both.  If  the  claimant  be  deterred  from  entering  by  menaces 
or  bodily  fear,  he  may  make  claim,  as  near  to  the  estate 
as  he  can,  with  the  like  forms  and  solemnities,  which  claim 
is  in  force  for  only  a  year  and  a  day.  And  this  claim,  if  it  be 
repeated  once  in  the  space  of  every  year  and  a  day  (which 
is  called  continual  claim),  has  the  same  effect  with,  and  in 
all  respects  amounts  to,  a  legal  entry.  Such  an  entry  gives 
a  man  seisin,  or  puts  into  immediate  possession  him  that 
hath  right  of  entry  on  the  estate,  and  thereby  makes  him 
complete  owner,  and  capable  of  conveying  it  from  himself 
by  either  descent  or  purchase.^ 

This  remedy  by  entry  takes  place  in  three  only  of  the 
five  species  of  ouster,  viz.,  abatement,  intrusion,  and  dis- 
seisin. 

But  upon  a  discontinuance  or  deforcement  the  owner  of  the  estate  can- 
not enter,  but  is  driven  to  his  action;  for  herein  the  original  entry  being 
lawful,  and  thereby  an  apparent  right  of  possession  being  gained,  the  law 
will  not  suffer  that  right  to  be  overthrown  by  the  mere  act  or  entry  of 
the  claimant. 

1.  See   2    Wasli.    Real    Prop.    *485,  period  since  the  time  when  the  actual 

486,    "As    affecting    the    question    of  seisin  was  gained  by  one  and  lost  by 

title,    however,    these    principles    [re-  the  other."     lb.     See,  also,  Stat.  3  & 

ferring  to  re-entry  by   the  disseisee]  4  Wm.  4,  c.  37,  and  the  local  statutes 

are  chiefly   important  in  determining  of  the  several   states  as  to  the  legal 

whether   a   title    has   been   gained   by  effect  of  entry, 
adverse    enjoyment   for   the   requisite 


Chap.  X.]         Of  Injukies  to  Eeal  Peopeety.  511 

Yet  a  man  may  enter  on  his  tenant  by  sufferance;  for 
such  tenant  hath  no  freehold,  but  only  a  bare  possession, 
which  may  be  defeated,  like  a  tenancy  at  will,  by  the  mere 
entry  of  the  owner. 

On  the  other  hand,  in  case  of  abatement,  intrusion,  or  disseisin,  where 
entries  are  generally  lawful,  this  right  of  entry  may  be  tolled,  that  is, 
taken  away  by  descent.  [176]  In  general  no  man  can  recover  possession 
by  mere  entry  on  lands  which  another  hath  by  descent.  [177]  Yet  this 
rule  hath  some  exceptions,  especially  if  the  claimant  were  under  any 
legal  disabilities  during  the  life  of  the  ancestor,  either  of  infancy,  cover- 
ture, imprisonment,  insanity,  or  being  out  of  the  realm,  in  all  which 
eases  there  is  no  neglect  or  laches  in  the  claimant,  and  therefore  no 
descent  shall  bar  or  take  away  his  entry.  On  the  other  hand,  it  is  en- 
acted by  the  statute  of  limitations,  21  Jac.  I.  c.  16,  that  no  entry  shall  be 
made  by  any  man  upon  lands,  unless  within  twenty  years  after  his  right 
shall  accrue.  [178] 

This  remedy  by  entry  must  be  pursued  according  to 
statute  5  Ric.  II.  st.  1,  c.  8,  in  a  peaceable  and  easy  manner, 
and  not  with  force  or  strong  hand.  [179]  For  if  one  turns 
or  keeps  another  out  of  possession  forcibly,  this  is  an  injury 
of  both  a  civil  and  a  criminal  nature.  The  civil  is  remedied 
by  immediate  restitution,  w^hich  puts  the  ancient  possessor 
in  statu  quo;^  the  criminal  injury,  or  public  wrong,  by 
breach  of  the  king's  peace,  is  punished  by  fine  to  the  king. 
For  by  the  statute  8  Hen.  VI.  c.  9,  upon  complaint  made  to 
any  justice  of  the  peace,  of  a  forcible  entry,  with  strong 
hand,  on  lands  or  tenements,  or  a  forcible  detainer  after 
a  peaceable  entry,  he  shall  trj"  the  truth  of  the  complaint 
hj  jury,  and  upon  force  found  shall  restore  the  possession 
to  the  party  so  put  out.^  But  this  does  not  extend  to  such 
as  endeavor  to  keep  possession  manu  foi'ti,'^  after  three 
years'  peaceable  enjoyment  of  either  themselves,  their  an- 
cestors, or  those  under  whom  they  claim;  by  a  subsequent 
clause  of  the  same  statute,  enforced  by  statute  31  Eliz.  c.  11. 

2.  In  his  former  condition  or  state.      1 ;   Rev.  Stat.  N.  Y.,  pt.  3,  ch.  8,  tit. 

3.  These  statutes  have  been  re-en-  10,  sec.  1;  2  Comp.  Laws,  Mich.  1871, 
acted   and   extended   by   most   of   the      sec.   6695. 

states.     See  Gen.  Stat.  Mass.,  ch.  137,  4.  By  a  strong  hand, 

sec.   1;   Rev.  Stat.  111.  1874,  335,  sec. 


512  Of  Injuries  to  Real  Pkoperty.        [Book  III. 

II.  Thus"  far  of  remedies  when  tenant  or  occupier  of  the  land  hath 
gained  only  a  mere  possession,  and  no  apparent  shadow  of  right.  Next 
follow  another  class  which  are  in  use  where  the  title  of  the  tenant  or 
occupier  is  advanced  one  step  nearer  to  perfection,  so  that  he  hath  in  him 
not  only  a  bare  possession,  which  may  be  destroyed  by  a  bare  entry,  but 
also  an  apparent  right  of  possession,  which  cannot  be  removed  but  by 
orderly  course  of  law,  in  the  process  of  which  it  must  be  shown  that 
though  he  hath  at  present  possession  and  therefore  hath  the  presump- 
tive right,  yet,  there  is  a  right  of  possession  superior  to  his,  residing  in 
him  who  brings  the  action.  [180] 

These  remedies  are  either  by  a  writ  of  entry  or  an  assise,  which  are 
action  merely  possessory,  serving  only  to  regain  that  possession  whereof 
the  demandant  (that  is,  he  who  sues  for  the  land)  or  his  ancestors  have 
been  unjustly  deprived  by  the  tenant  or  possessor  of  the  freehold,  or 
those  under  whom  he  claims.  They  decide  nothing  with  respect  to  the 
right  of  property,  only  restoring  the  demandant  to  that  state  or  situation 
in  which  he  was  (or  by  law  ought  to  have  been)  before  the  dispossession 
committed.  But  this  without  any  prejudice  to  the  right  of  ownership; 
for  if  the  dispossessor  has  any  legal  claim,  he  may  afterwards  exert  it, 
notwithstanding  a  recovery  against  him  in  these 'possessory  actions. 
Only  the  law  will  not  suffer  him  to  be  his  own  judge,  and  either  take  or 
maintain  possession  of  the  lauds  until  he  hath  recovered  them  by  legal 
means,  rather  presuming  the  right  to  have  accompanied  the  ancient  seisin 
than  to  reside  in  one  who  had  no  such  evidence  in  his  favor. 

1.  The  first  of  these  possessory  remedies  is  by  writ  of  entry  [obsolete], 
which  is  that  which  disproves  the  title  of  the  tenant  or  possessor,  by 
showing  the  unlawful  means  by  which  he  entered  or  continues  possession. 

This  remedy  is  applicable  to  all  the  cases  of  ouster  before  mentioned, 
except  that  of  discontinuance  by  tenant  in  tail,  and  some  peculiar  species 
of  deforcements.  [182]    [See  the  text  for  these  exceptions.] 

2.  As  a  writ  of  entry  is  a  real  action  which  disproves  the  title  of  tho 
tenant  by  showing  the  unlawful  commencement  of  his  possession,  so  a 
writ  of  assise  [obsolete]  is  a  real  action  which  proves  the  title  of  the 
demandant  merely  by  showing  his  or  his  ancestor's  possession.  And 
these  two  remedies  are  in  all  other  respects  so  totally  alike,  that  a  judg- 
ment or  recovery  in  one  is  a  bar  against  the  other;  so  that  when  a  man's 
possession  is  once  established  by  either  of  these  possessory  actions,  it 
can  never  be  disturbed  by  the  same  antagonist  in  any  other  of  them.  [185] 
This  remedy,  by  writ  of  assise,  is  only  applicable  to  two  species  of  injury 
by  ouster,  viz.  abatement  and  a  recent  or  novel  disseisin. 

III.  By  these  several  possessory  remedies  the  right  of  possession  may 
be  restored  to  him  that  is  unjustly  deprived  thereof.  [190]  But  the  right 
of  possession  (though  it  carries  with  it  a  strong  presumption)  is  not  al- 
wavs  conclusive  evidence  of  the  right  of  property,  which  may  still  subsist 
in  another  man.  For  as  one  man  may  have  the  possession  and  another  tho 
right  of  possession,  which  is  recovered  by  these  possessory  actions,  so 
one  man  may  have  the  right  of  possession,  and  so  not  be  liable  to  eviction 


Chap.  X.]  Of  Injuries  to  Real  Property.  513 

by  any  possessory  action,  and  another  may  have  the  right  of  property, 
which  cannot  be  otherwise  asserted  than  by  the  great  and  final  remedy  of 
a  writ  of  right,  or  such  correspondent  writs  as  are  in  the  nature  of  a 
writ  of  right.  [191]     [Obsolete.] 

This  happens  principally  in  four  cases:  1.  Upon  discontinuance  by  the 
alienation  of  tenant  in  tail,  whereby  he  who  had  the  right  of  possession 
bath  transferred  it  to  the  alienee,  and  therefore  his  issue,  or  those  in  re- 
mainder or  reversion,  shall  not  be  allowed  to  recover  by  virtue  of  that 
possession  which  the  tenant  hath  so  voluntarily  transferred.  2,  3.  In 
■case  of  judgment  given  against  either  party,  whether  by  his  own  default 
or  upon  trial  of  the  merits  in  any  possessory  action;  for  such  judgment, 
if  obtained  by  him  who  hath  not  the  true  ownership,  is  held  to  be  a 
species  of  deforcement,  which,  however,  binds  the  right  of  possession, 
and  suffers  it  not  to  be  ever  again  disputed,  unless  the  right  of  property 
be  also  proved.  4.  In  case  the  demandant,  who  claims  the  right,  is 
barred  from  these  possessory  actions  by  length  of  time  and  the  statute  of 
limitations;  for  an  undisturbed  possession  for  fifty  years  ought  not  to 
be  devested  by  anything  but  a  very  clear  proof  of  the  absolute  right  of 
property.  In  these  four  cases  the  law  applies  the  remedial  instrument 
of  either  the  writ  of  right  itself,  or  such  other  writs  as  are  said  to  be  of 
the  same  nature.     [For  particulars,  see  text.] 

The  title  of  lands  is  now  usually  tried  in  actions  of  eject- 
ment or  trespass;  of  which  in  the  following  chapters.^  [1971 

5.  The  real  actions  have  been  abol-      Wm.  4,  oh.  27,  and  the  local  statutes 
ished   or   become   obsolete   in   all   the      of  the  several  states, 
states   and   in   England.      See   3   &  4 

33 


il4  OusTEE  OF  Chattels  Real.  [Book  III. 


CHAPTEE  XL 

OP  DISPOSSESSION,  OE  OUSTER,  OF  CHATTELS  REAL. 

I.  Ouster,  or  amotion  of  possession  from  estates  held  by  statute,  recog- 
nizance,  or  elegrlt,  is  only  liable  to  happen  by  a  species  of  disseisin,  or 
turning  out  of  the  legal  proprietor  before  his  estate  is  determined,  by 
raising  the  sum  for  which  it  is  given  him  in  pledge.  [198]  And  for  such 
ouster,  though  the  estate  be  merely  a  chattel  interest,  the  owner  shall 
[by  statute]  have  the  same  remedy  as  for  an  injury  to  a  freehold,  viz. 
by  assise  of  novel  disseisin.   [Obsolete.] 

II.  As  for  ouster  or  amotion  of  possession,  from  an  estate 
for  years,  this  happens  only  by  a  like  kind  of  disseisin,  ejec- 
tion, or  turning  out  of  the  tenant  from  the  occupation  of 
the  land  during  the  continuance  of  his  term.  [199]  For 
this  injury  the  law  has  provided  him  with  two  remedies, 
according  to  the  circumstances  and  situation  of  the  wrong- 
doer: the  writ  of  ejectione  firmae,^  which  lies  against  any 
one,  the  lessor,  reversioner,  remainder-man,  or  any  stranger 
who  is  himself  the  wrongdoer  and  has  committed  the  injury 
complained  of;  and  the  writ  of  quare  ejecit  infra  terminum,- 
which  lies  not  against  the  wrongdoer  or  ejector  himself, 
but  his  feoifee  or  other  person  claiming-  under  him.  These 
are  mixed  actions,  somewhat  between  real  and  personal; 
for  therein  are  two  things  recovered,  as  well  restitution  of 
the  term  of  years  as  damages  for  the  ouster  or  wrong. 

1.  A  writ  then  of  ejectione  ftrmae,  or  action  of  trespass  in 
ejectment,  lieth  Avhere  lands  or  tenements  are  let  for  a  term 
of  years,  and  afterwards  the  lessor,  reversioner,  remainder- 
man, or  any  stranger  doth  eject  or  oust  the  lessee  of  his 
term.  And  by  this  writ  the  plaintiff  shall  recover  back  his 
term,  or  the  remainder  of  it,  with  damages.  Since  the  dis- 
use of  real  actions,  this  mixed  proceeding  is  become  the 
common  method  of  trying  the  title  to  lands  or  tenements. 
[200] 

The  remedy  by  ejectment  is  in  its  original  an  action 

1.  Ejection  from  tiie  farm.  2.  Wherefore  he  ejected  within  the 

term. 


Chap.  XI.]  Ouster  of  Chattels  Real.  515 

brought  by  one  who  hath  a  lease  for  years  to  repair  the 
injury  done  him  by  dispossession.  [201]  In  order,  there- 
fore, to  convert  it  into  a  method  of  trying  titles  to  the  free- 
hold, it  is  first  necessary  that  the  claimant  do  take  posses- 
sion of  the  lands,  to  empower  him  to  constitute  a  lessee  for 
years,  that  may  be  capable  of  receiving  this  injury  of  dis- 
possession. When,  therefore,  a  person  who  hath  right  of 
entry  into  lands  determines  to  acquire  that  possession  which 
is  wrongfully  withheld  by  the  present  tenant,  he  makes  (as 
by  law  he  may)  a  formal  entry  on  the  premises,  and  being 
so  in  the  possession  of  the  soil,  he  there,  upon  the  land, 
seals  and  delivers  a  lease  for  years  to  some  third  person  or 
lessee,  and,  having  thus  given  him  entry,  leaves  him  in  pos- 
session of  the  premises.  This  lessee  is  to  stay  upon  the 
land  till  the  prior  tenant,  or  he  who  had  the  previous  pos- 
session, enters  thereon  afresh  and  ousts  him,  or  till  some 
other  person  (either  by  accident  or  by  agreement  before- 
hand) comes  upon  the  land,  and  turns  him  out  or  ejects 
him.  [202]  For  this  injury  the  lessee  is  entitled  to  his 
action  of  ejectment  against  the  tenant,  or  this  casual  ejector, 
whichever  it  was  that  ousted  him,  to  recover  back  his  term 
and  damages.  But  where  this  action  is  brought  against 
such  a  casual  ejector  as  is  before  mentioned,  and  not  against 
the  very  tenant  in  possession,  the  court  will  not  suffer  the 
tenant  to  lose  his  possession  without  any  opportunity  to 
defend  it.  Wherefore  it  is  a  standing  rule  that  no  plain- 
tiff shall  proceed  in  ejectment  to  recover  lands  against  a 
casual  ejector  without  notice  given  to  the  tenant  in  posses- 
sion (if  any  there  be),  and  making  him  a  defendant  if  he 
pleases.  And  in  order  to  maintain  the  action  the  plaintiff 
must,  in  case  of  any  defence,  make  out  four  points  before 
the  court,  viz.,  title,  lease,  entry,  and  ouster.  First,  he 
must  show  a  good  title  in  his  lessor,  which  brings  the  matter 
of  right  entirely  before  the  court ;  then,  that  the  lessor,  being 
seised  or  possessd  by  virtue  of  such  title,  did  make  him  the 
lease  for  the  present  term;  thirdly,  that  he,  the  lessee  or 
plaintiff,  did  enter  or  take  possession  in  consequence  of  such 
lease;  and  then,  lastly,  that  the  defendant  ousted  or  ejected 
him.     Whereupon  he  shall  have  judgment  to  recover  his 


516  Ouster  of  Cifattels  Rjcal.  [Book  III. 

term  and  damages,  and  shall,  in  consequence,  have  a  irrit  of 
posscssio)!,  which  the  sheriff  is  to  execute  by  delivering  him 
the  undisturbed  and  peaceable  possession  of  his  term. 

This  is  the  regular  method  of  bringing  an  action  of  eject- 
ment, and  must  be  still  continued  in  due  form  and  strict- 
ness, save  only  as  to  the  notice  to  the  tenant  whenever  the 
possession  is  vacant  or  there  is  no  actual  occupant  of  the 
premises,  and  also  in  some  other  cases.  But  as  much  trouble 
and  formality  were  found  to  attend  the  actual  making  of  the 
1ea.9r,  entrii,  and  ouster,  a  new  and  more  easy  method  of  try- 
ing titles  by  writ  of  ejectment,  where  there  is  any  actual 
tenant  or  occupier  of  the  premises  in  dispute,  was  invented 
somewhat  more  than  a  century  ago  by  the  Lord  Chief  Jus- 
tice Rolle.  [203]  This  new  method  entirely  depends  upon 
a  string  of  legal  fictions:  no  actual  lease  is  made,  no  actual 
entry  by  the  plaintiff,  no  actual  ouster  by  the  defendant, 
but  all  are  merely  ideal  for  the  sole  purpose  of  trying 
the  title.  To  this  end,  in  the  proceedings,  a  lease  for  a 
term  of  years  is  stated  to  have  been  made  by  him  who 
claims  title,  to  the  plaintiff  who  brings  the  action,  as  by 
John  Rogers  to  Richard  Smith.  It  is  also  stated  that 
Smith,  the  lessee,  entered,  and  that  the  defendant  William 
Stiles,  wiio  is  called  the  casual  ejector,  ousted  him,  for 
which  ouster  he  brings  this  action.  As  soon  as  this  action 
is  brought,  and  the  complaint  fully  stated  in  the  declara- 
tion. Stiles,  the  casual  ejector  or  defendant,  sends  a  written 
notice  to  the  tenant  in  possession  of  the  lands,  as  George 
vSaunders,  informing  him  of  the  action  brought  by  Richard 
Smith,  and  transmitting  him  a  Copy  of  tlie  declaration, 
withal  assuring  him  that  he,  Stiles,  the  defendant,  lias  no 
title  at  all  to  the  premises,  and  shall  make  no  defence,  and 
therefore  advising  the  tenant  to  appear  in  court  and  defend 
his  ow^n  title,  otherwise  he,  the  casual  ejector,  will  suffer 
judgment  to  be  had  again  him,  and  thereby  the  actual 
tenant,  Saunders,  will  inevitably  be  turned  out  of  posses- 
sion. On  receipt  of  this  friendly  caution,  if  the  tenant  in 
possession  does  not  within  a  limited  time  apply  to  the 
court  to  be  admitted  a  defendant  in  the  stead  of  Stiles,  he 
is  supposed  to  have  no  right  at  all;  and,  upon  judgment 


Chap.  XL]  Ouster  of  Chattels  Real.  517 

being  had  against  Stiles,  the  casual  ejector,  Saunders,  the 
real  tenant,  will  be  turned  out  of  possession  by  the  sheriff. 

But  if  the  tenant  in  possession  applies  to  be  made  a 
defendant  it  is  allowed  him  upon  this  condition:  that  he 
enter  into  a  rule  of  court  to  confess  at  the  trial  of  the  cause 
three  of  the  four  requisites  for  the  maintenance  of  the  plain- 
tiff's action,  viz.,  the  lease  of  Rogers,  the  lessor,  the  entrt/ 
of  Smith,  the  plaintiff,  and  his  ouster  by  Saunders  himself, 
now  made  the  defendant  instead  of  Stiles  —  which  requi- 
sites being  wholly  fictitious,  should  the  defendant  put  the 
plaintiff  to  prove  them,  he  must  of  course  be  nonsuited  for 
want  of  evidence;  but  by  such  stipulated  confession  of 
lease,  entry,  and  ouster,  the  trial  will  now  stand  upon  the 
merits  of  the  title  only.  [204]  This  done,  the  declaration 
is  altered  by  inserting  the  name  of  George  Saunders  instead 
of  William  Stiles,  and  the  cause  goes  down  to  trial  under 
the  name  of  Smith  (the  plaintiff),  on  the  demise  of  Rogers 
(the  lessor),  against  Saunders,  the  new  defendant.  And 
therein  the  lessor  of  the  plaintiff  is  bound  to  make  out  a 
clear  title,  otherwise  his  fictitious  lessee  cannot  obtain 
judgment  to  have  possession  of  the  land  for  the  term  sup- 
posed to  be  granted.  But  if  the  lessor  makes  out  his  title 
in  a  satisfactory  manner,  then  judgment  and  a  writ  of 
possession  shall  go  for  Richard  Smith,  the  nominal  plain- 
tiff, who  by  this  trial  has  proved  the  right  of  John  Rogers, 
his  supposed  lessor.  But  if  the  new  defendants,  whether 
landlord  or  tenant  or  both,  after  entering  into  the  common 
rule,  fail  to  appear  at  the  trial,  and  to  confess  lease,  entry, 
and  ouster,  the  plaintiff  (Smith)  must  indeed  be  there  non- 
suited for  want  of  proving  those  requisites;  but  judgment 
will  in  the  end  be  entered  against  the  casual  ejector,  Stiles, 
for  the  condition  on  which  Saunders  or  his  landlord  was 
admitted  a  defendant  is  broken,  and  therefore  the  plaintiff 
is  put  again  in  the  same  situation  as  if  he  never  had  ap- 
peared at  all,  the  consequence  of  which  (we  have  seen) 
would  have  been  that  judgment  would  have  been  entered 
for  the  plaintiff,  and  the  sheriff,  by  virtue  of  a  writ  for 
that  purpose,  would  have  turned  out  Saunders  and  deliv- 
ered possession  to  Smith.   [205]     The  same  process  there- 


618  Ouster  of  Chattels  Real.  [Book  IIT. 

fore  as  would  have  been  had,  provided  no  conditional  rule 
had  been  ever  made,  must  now  be  pursued  as  soon  as  the 
condition  is  broken.^ 

The  damages  recovered  in  these  actions,  though  formerly 
their  only  intent,  are  now  usually  (since  the  title  has  been 
considered  as  the  principal  question)  very  small  and  inade- 
quate, amounting  commonly  to  one  shilling  or  some  other 
trivial  sum.  In  order,  therefore,  to  complete  the  remedy, 
when  the  possession  has  been  long  detained  from  him  that 
had  the  right  to  it,  an  action  of  trespass  also  lies  after  a 
recovery  in  ejectment  to  recover  the  mesne  profits  which 
the  tenant  in  possession  has  wrongfully  received ;  which  ac- 
tion may  be  brought  in  the  name  of  either  the  nominal 
plaintiff  in  the  ejectment  or  his  lessor  against  the  tenant  in 
possession,  whether  he  be  made  party  to  the  ejectment,  or 
suffers  judgment  to  go  by  default.  In  this  case  the  judg- 
ment in  ejectment  is  conclusive  evidence  against  the  de- 
fendant for  all  profits  which  have  accrued  since  the  date  of 
the  demise  stated  in  the  former  declaration  of  the  plaintiff; 
but  if  the  plaintiff  sues  for  any  antecedent  profits,  the  de- 
fendant may  make  a  new  defence.* 

3.  The  action  of  ejectment  is  still  till  the  costs  of  a  former  ejectment, 

in  use  eo  nomine   (by  that  name)    in  though  brought  in  another  court,  be 

Illinois,  Michigan  and  probably  other  discharged.    2  Bla.  Rep.  1158;  Barnes, 

states;   but   it  has  been   shorn  of  its  133.     But  a  court  of  equity,  in  some 

fictions  and  the  action  is  begun  like  instances   where   there   had   been   sev- 

any  other  action  by  the  real  claimant  eral  trials  in  ejectment  for  the  same 

against    the    party    in    possession    or  premises,  though  the  title  was  entirely 

alleged  owner,  if  unoccupied.   At  com-  legal,    has    granted    a    perpetual    in- 

mon  law  one  or  both  the  parties  to  junction.     1  P.  W.  672.     By  statute, 

the  action  being  fictitious,  the  judg-  however,  one  or  more  new  trials  are 

ment  was  not  a  bar  and   the  unsuc-  now  granted  in  certain  cases.    Consult 

cessful   party   might  re-try  the   same  the  local  statutes.     See  1  Green's  New 

question  as  often  as' he  pleased  with-  Practice,  371;  Howell's  (Mich.)   Stat- 

out    the   leave   of   the  court;    for   by  utes,   1955,   195G;    Rev.  Stat.  111.,  ch. 

making    a    fresh    demise    to    another  45,  sec.  35. 

nominal  character,  it  becomes  the  ac-  4.  In   Illinois,  Michigan   and   prob- 

tion  of  a  new  plaintiflF  upon  another  ably  other  states,  it  is  not  now  neces- 

right,  and  the  courts  of  law  could  not  sary   to   bring   a   nrw   action   for   the 

any  farther  prevent  this  repetition  of  mesne    profits,   but   they   may   be    re- 

the  action,  than  by  ordering  the  pro-  covered  in   the  same  action  on   filing 

ceedings  in  one  ejectment  to  be  stayed  what  is  called  a  suggestion  of  claim 


Chap.  XI.]  Oustee  of  Chattels  Real.  519 

A  writ  of  ejectment  is  not  an  adequate  means  to  try  the 
title  of  all  estates,  for  on  those  things  whereon  an  entry 
cannot  in  fact  be  made  no  entry  shall  be  supposed  by  any 
fiction  of  the  parties.  Therefore  an  ejectment  will  not  lie 
of  an  advowson,  a  rent,  a  common,  or  other  incorporeal 
hereditament. 

2.  The  writ  of  qnare  ejecit  infra  terminum  lieth  by  the  ancient  law 
where  the  wrongdoer  or  ejector  is  not  himself  in  possession  of  the  lands, 
Taut  another  who  claims  under  him.  [207]  But  since  the  introduction  of 
fictitious  ousters,  whereby  the  title  may  be  tried  against  any  tenant  in 
possession  (by  what  means  soever  he  acquired  it),  and  the  subsequent 
recovery  of  damages  by  action  of  trespass  for  mesne  profits,  this  action 
is  fallen  into  disuse. 

for   mesne  profits.     See  Puterburgh'3      420,  421;    1  Green's  New  Prac.   375; 
Com.  Law,  Plead.  &  Prac.   (7th  Ed.),      6  Hill  (N.  Y.)  328. 


;20  Of  Trespass.  [Book  III. 


CHAPTER  XII. 

OF  TRESPASS. 

Trespass,  in  its  largest  and  most  extensive  sense,  signifies 
any  transgression  or  offence  against  the  law  of  nature,  of 
society,  or  of  the  country  in  which  we  live,  whether  it 
relates  to  a  man's  person  or  his  property.  [208]  But  in  the 
limited  and  confined  sense  in  which  we  are  at  present  to 
consider  it,  it  signifies  no  more  than  an  entry  on  another 
man's  ground  without  a  lawful  authority,  and  doing  some 
damage,  however,  inconsiderable,  to  his  real  property.  [209] 

The  law  of  England  treats  every  entry  upon  another's 
lands  (unless  by  the  owner's  leave,  or  in  some  very  particu- 
lar cases)  as  an  injury  or  wrong,  for  satisfaction  of  which 
an  action  of  ^trespass  will  lie,  but  determines  the  quantum- 
of  that  satisfaction  by  considering  how  far  the  offence  was 
wilful  or  inadvertent,  and  by  estimating  the  value  of  the 
actual  damage  sustained. 

Every  unwarrantable  entry  on  another's  soil  the  law 
entitles  a  trespass  by  breaking  his  close,  the  words  of  the 
writ  of  trespass  commanding  the  defendant  to  show  cause 
qiiare  clan^um  querent  is  f  regit. ^  For  every  man's  land  is 
in  the  eye  of  the  law  enclosed  and  set  apart  from  his  neigh- 
bor's and  that  either  by  a  visible  and  material  fence,  as  one 
field  is  divided  from  another  by  a  hedge,  or  by  an  ideal  in- 
visible boundary,  existing  only  in  the  contemplation  of  law, 
as  when  one  man's  land  adjoins  to  another's  in  the  same 
field.  [210]  And  every  such  entry  or  breach  of  a  man's 
close  carries  necessarily  along  with  it  some  damage  or 
other;  for  if  no  other  special  loss  can  be  assigned,  yet  still 
the  words  of  the  writ  itself  specify  one  general  damage,  viz., 
the  treading  down  and  bruising  his  herbage. 

1.  Wherefore  he  broke  the  plaintifl's  1  Green's  New  Practice,  *70,  71.     In 

close.  both  states  trespass  and  case  are  con- 

This  action  is  still  in  use  in  Miclii-  current     remedies.       Id.       The     same 

pan,     Illinois     and     probably     otlier  remedy  exists,  though  under  another 

stales.     See  Puterburgh's  Com.   Law,  form  in  all  the  states. 
Plead.   &  Prac.    (7th   Ed.),  320,  G23; 


Chap.  XII.]  Of  Trespass.  '  '  521 

One  must  have  a  property  (either  absolute  or  temporary) 
in  the  soil,  and  actual  possession  by  entry,  to  be  able  to 
maintain  an  action  of  trespass;  or  at  least  it  is  requisite 
that  the  party  have  a  lease  and  possession  of  the  vesture 
and  herbage  of  the  land.  But  before  entry  and  actual 
possession  one  cannot  maintain  an  action  of  trespass 
though  he  hath  the  freehold  in  law.  And  therefore  an  heir 
before  entry  cannot  have  this  action  against  an  abator, 
though  a  disseisee  might  have  it  against  the  disseisor  for 
the  injury  done  by  the  disseisin  itself  at  which  time  the 
plaintiff  was  seised  of  the  land;  but  he  cannot  have  it  for 
any  act  done  after  the  disseisin  until  he  hath  gained  pos- 
session by  re-entry,  and  then  he  may  well  maintain  it  for  the 
intermediate  damage  done,  for  after  his  re-entry  the  law,  by 
a  kind  of  jus  postliminii,  supposes  the  freehold  to  have  all 
along  continued  in  him. 

A  man  is  answerable  for  not  only  his  own  trespass  but 
that  of  his  cattle  also;  for  if  by  his  negligent  keeping  they 
stray  upon  the  land  of  another  (and  much  more,  if  he  per- 
mits, or  drives  them  on),  and  they  there  tread  dawn  his 
neighbor's  herbage  and  spoil  his  corn  or  his  trees,  this  is 
a  trespass  for  w^hich  the  owner  must  answer  in  damages, 
and  the  law  gives  the  party  injured  a  double  remedy  in  this 
■case,  by  permitting  him  to  distrain  the  cattle  thus  damaffe- 
feasant,  or  doing  damage,  till  the  owner  shall  make  him 
satisfaction,  or  else  by  leaving  him  to  the  common  remedy 
in  foro  contentioso ,^  by  action.  [211]  And  the  action  that 
lies  in  either  of  these  cases  of  trespass  committted  upon 
another's  land,  either  by  a  man  himself  or  his  cattle,  is  the 
action  of  trespass  vi  et  armis. 

In  trespasses  of  a  permanent  nature,  where  the  injury  is 
continually  renewed  (as  by  spoiling  or  consuming  the  herb- 
age with  the  defendant's  cattle),  the  declaration  may  allege 
the  injury  to  have  been  committed  by  continuation  from 
one  given  day  to  another  (wiiicli  is  called  laying  the  action 
with  a  continuando),  and  the  plaintiff  shall  not  be  com- 
pelled to  bring  separate  actions  for  every  day's  separate 
offence.  [212]     But  where  the  trespass  is  by  one  or  several 

2.  In  a  pourt  of  litigation. 


522  Of  Trespass.  [Book  III. 

acts,  each  of  which  terminates  in  itself,  and  being  once 
done  cannot  be  done  again,  it  cannot  be  laid  with  a  continu- 
ando;  yet  if  there  be  repeated  acts  of  trespass  committed^ 
as  cutting  down  a  certain  number  of  trees,  they  may  be  laid 
to  be  done,  not  continually,  but  at  divers  days  and  times 
within  a  given  period.^ 

In  some  cases  trespass  is  justifiable,  or,  rather,  entry  on 
another's  land  or  house  shall  not  in  those  cases  be  accounted 
trespass,  as  if  a  man  comes  thither  to  demand  or  pay  money 
there  payable,  or  to  execute  in  a  legal  manner  the  process 
of  the  law.  Also,  a  man  may  justify  entering  into  an  inn 
or  public  house  without  the  leave  of  the  owner  first  spe- 
cially asked,  because  when  a  man  professes  the  keeping 
such  inn  or  public  house  he  thereby  gives  a  general  licence 
to  any  person  to  enter  his  doors.  So  a  landlord  may  justify 
entering  to  distrain  for  rent,  a  commoner  to  attend  his 
cattle  commoning  on  another's  land,  and  a  reversioner  to 
see  if  any  waste  be  committed  on  the  estate  for  the  appar- 
ent necessity  of  the  thing.  In  like  manner  the  common 
law  warrants  the  hunting  of  ravenous  beasts  of  prey,  as 
badgers  and  foxes,  in  another  man's  land,  because  the  de- 
stroying such  creatures  is  said  to  be  profitable  to  the  pub- 
lic. [213]  [Not  the  law,  except  perhaps  as  to  noxious  ani- 
mals that  are  a  public  nuisance.]  But  in  cases  where  a 
man  misdemeans  himself,  or  makes  an  ill  use  of  the  author- 
ity with  which  the  law  intrusts  him,  he  shall  be  accounted 
a  trespasser  ab  initio,  as  if  one  conies  into  a  tavern  and 
will  not  go  out  in  a  reasonable  time,  but  tarries  there  all 
night  contrary  to  the  inclinations  of  the  owner,  this  wrong- 
ful act  shall  affect  and  have  relation  back  even  to  his  first 
entry,  and  make  the  whole  a  trespass.  But  a  bare  non- 
feasance, as  not  paying  for  the  wine  he  calls  for,  will  not 
make  him  a  trespasser,  for  this  is  only  a  breach  of  contract 
for  which  the  travener  shall  have  an  action  of  debt  or 

3.  The  latter  mode  prevails  in  mod-  tween  that  day  and  the  commencement 

ern  practice,  and  the  form  of  declar-  of   the   suit,   trespassed,   the   plaintiff 

ing    with    a    continuando    has    grown  may  prove  any  number  of  trespasser 

obsolete.     Under   the   statement   that  within  those  limits,  though  none  are- 

the  defendant,  on  a  day  named,  and  specified  except  those  on  the  earliest 

on   divers   other   days   and   times   be-  day  named.     1  Stark.  R.  351. 


Chap.  XII.]  Of  Trespass.  523 

assumpsit  against  him.*  So  if  a  landlord  distrained  for 
rent  and  wilfully  killed  the  distress,  this  by  the  common 
law  made  him  a  trespasser  ah  initio.  If  a  reversioner  who 
enters  on  pretence  of  seeing  waste  breaks  the  house  or  stays 
there  all  night,  or  if  the  commoner  who  comes  to  tend  his 
cattle  cuts  down  a  tree,  in  these  and  similar  cases  the  law 
judges  that  he  entered  for  this  unlawful  purpose;  and 
therefore,  as  the  act  which  demonstrates  such  his  purpose 
is  a  trespass,  he  shall  be  esteemed  a  trespasser  ab  initio. 
So,  also,  in  the  case  of  hunting  the  fox  or  the  badger,  a 
man  cannot  justify  breaking  the  soil  and  digging  him  out 
of  his  earth;  for  though  the  law  warrants  the  hunting  of 
such  noxious  animals  for  the  public  good,^  yet  it  is  held 
that  such  things  must  be  done  in  an  ordinary  and  usual 
manner:  therefore,  as  there  is  an  ordinary  course  to  kill 
them,  viz.,  by  hunting,  the  court  held  that  the  digging 
for  them  was  unlawful.   [214] 

A  man  may  also  justify  in  an  action  of  trespass  on  ac- 
count of  the  freehold  and  right  of  entry  being  in  himself, 
and  this  defence  brings  the  title  of  the  estate  in  question.® 
This  is  therefore  one  of  the  ways  devised  since  the  disuse 
of  real  actions  to  try  the  property  of  estates,  though  it  is 
not  so  usual  as  that  by  ejectment,  because  that,  being  now 
a  mixed  action,  not  only  gives  damages  for  the  ejection,  but 
also  possession  of  the  land;  whereas  in  trespass,  which  is 
merely  a  personal  suit,  the  right  can  be  only  ascertained, 
but  no  possession  delivered,  nothing  being  recovered  but 
damages  for  the  wrong  committed. 

4.  This  is  the  rule  in  the  leading  Cooley  on  Torts  (Students' Ed.),  313; 
case  known  as  The  Six  Carpenters'  Diana  Shooting  Club  v.  Lamoreaux, 
Case,   8   Coke,    146;    1    Smith's   Lead.       114   Wis.  44. 

Cases,  *216.  6.  By  the  plea  of  liberum  tenemen- 

5.  Not  the  law  in  this  country.  turn,  i.  e.,  that  the  locus  in  quo  was 
Even  a  state  license  to  hunt  and  fish  the  defendant's  freehold.  Gould's 
confers  no  right  to  commit  a  trespass.  Pleading,  eh.  vi,  part  2,  sees.  91-93. 


524  ^  Of  NuisAiN'CE.  [Book  III. 


CHAPTER  XIII. 

OF    NUISANCE. 

A  third  species  of  real  injuries  to  a  man's  lands  and  tene- 
ments is  by  nuisance.  Nuisance  (nocumentum)  or  annoy- 
ance signifies  anything  that  worketh  hurt,  inconvenience, 
or  damage.  [216]  And  nuisances  are  of  two  kinds:  public 
or  common  nuisances,  which  affect  the  public  and  are  an- 
noyance to  all  the  king's  subjects,  for  which  reason  we 
must  refer  them  to  the  class  of  public  wrongs  or  crimes  and 
misdemeanors;^  and  private  nuisances,  which  are  the  ob- 
jects of  our  present  consideration,  and  may  be  defined  any- 
thing done  to  the  hurt  or  annoyance  of  the  lands,  tenements, 
or  hereditaments  of  another. 

I.  We  will  consider  first  such  nuisances  as  may  affect  a 
man's  corporeal  hereditaments,  and  then  those  that  may 
damage  such  as  are  incorporeal. 

1.  First,  as  to  corporeal  inheritances.  If  a  man  builds  a 
house  so  close  to  mine  that  his  roof  overhangs  my  roof  and 
throws  the  water  off  his  roof  upon  mine,  this  is  a  nuisance 
for  which  an  action  will  lie.  Likewise  to  erect  a  house  or 
other  building  so  near  to  mine  that  it  obstructs  my  ancient 
lights  and  windows  is  a  nuisance  of  a  similar  nature.^  Also, 
if  a  person  keeps  his  hogs  or  other  noisome  animals  so 
near  the  house  of  another  that  the  stench  of  them  incom- 
modes him  and  makes  the  air  unwholesome,  this  is  an  in- 
jurious nuisance,  as  it  tends  to  deprive  him  of  the  use  and 
benefit  of  his  house.  A  like  injury  is  if  one's  neighbor  sets 
up  and  exercises  an  offensive  trade,  as  a  tanner's,  a  tallow- 
chandler's,  or  the  like;  for  though  these  are  lawful  and 
necessary  trades,  yet  they  should  be  exercised  in  remote 
places,  for  the  rule  is,  ''sic  utere  tuo,  ut  alien  uni  non  htedas/'^ 

1.  Post,  Book  4.  Cooley  on  Torts   (Students'  Ed.),  ch. 

2.  See,  as  to  ancient  lights,  ante,  17 ;  Burdick  on  Torts,  ch.  14.  As  to 
Not  applicable  to  this  country.  the  degree  of  annoyance  necessary  to 

3.  So  use  your  own  as  not  to  injure  constitute  a  nuisance,  see  Cooloy 
another.  Broom's  Legal  Maxims,  (supra).  571;  St.  Helen's  Smelting 
•337;  9  Rep.  59.  Co.   v.   Tipping,    11    H.   L.    Cas.    642; 

See,     generally,     as     to    nuisances,      g.  c.   Big.   Lead.   Cases,   454;    Susque- 


Chap,  XIII.]  Gf  Nuisance.  625 

This  therefore  is  an  actionable  nuisance.  So  that  the  nui- 
sances which  affect  a  man's  dwelling  may  be  reduced  to 
these  three:  1.  Overhanging  it,  which  is  also  a  species  of 
trespass,  for  ciijus  cat  .solum,  ejus  est  usque  ad  coelum;* 
2.  Stopping  ancient  lights;  and  3.  Corrupting  the  air  with 
noisome  smells;  for  light  and  air  are  two  indispensable 
requisites  to  every  dwelling.  But  depriving  one  of  a  mere 
matter  of  i)leasure,  as  of  a  fine  prospect  by  building  a  wall, 
or  the  like,  this,  as  it  abridges  nothing  really  convenient  or 
necessary,  is  no  injury  to  the  sufferer,  and  is  therefore  not 
an  actionable  imisance. 

As  to  nuisance  to  one's  lands:  if  one  erects  a  smelting- 
house  for  lead  so  near  the  land  of  another  that  the  vapor 
and  smoke  kill  his  corn  and  grass,  and  damage  his  cattle 
therein,  this  is  held  to  be  a  nuisance.  And  by  consequence 
it  follows  that  if  one  does  any  other  act,  in  itself  lawful, 
which  yet  being  done  in  that  place  necessarily  tends  to  the 
damage  of  another's  property,  it  is  a  nuisance;  for  it  is 
incumbent  on  him  to  find  some  other  place  to  do  that  act 
where  it  will  be  less  offensive.  [218]  So  also,  if  my  neigh- 
bor ought  to  scour  a  ditch,  and  does  not,  whereby  my  land 
is  overflowed,  this  is  an  actionable  nuisance.^ 

With  regard  to  other  corporeal  hereditaments:  it  is  a 
nuisance  to  stop  or  divert  water  that  uses  to  run  to  an- 
other's meadow  or  mill;  to  corrupt  or  poison  a  watercourse 
by  erecting  a  dye-house  or  a  lime-pit  for  the  use  of  trade  in 
the  upper  part  of  the  stream;  or,  in  short,  to  do  any  act 
therein  that  in  its  consequences  must  necessarily  tend  to  the 
prejudice  of  one 's  neighbor.*' 

2.  As  to  incorporeal  hereditaments,  the  law  carries  itself 
with  the  same  equity.     If  I  have  a  way  annexed  to  my 

hanna    Fertilizer    Co.    v.    Malone,    73  even  to  heaven.     This  doctrine  must 

Md.   268:    Bohan  v.   Port  Jcrvis  Gas  now  be  taken  with  some  reservations. 

Lt.  Co.,  112  N.  Y.  18.  See    Law    Notes   for   July,    1914,   62; 

That  cannot,  however,  be  a  nuisance  The  Law   of  Motor  Vehicles,  by  Mr. 

which  has  been  authorized  by  the  leg-  Berkeley  Davids,  §§  290,  291. 

i?-lature   acting   within   constitutional  5.  See  preceding  notes, 

limits.      Cooley   on    Torts    (Students'  6.  Cooley  on  Torts  (Students'  Ed. ), 

Ed.),  611.  578,  592,  593  and  cases  cited. 

4.  He  who  owns  the  land,  owns  also 


526  Of  Nuisance.  [Book  III. 

estate  across  another's  land,  and  he  obstructs  me  in  the 
use  of  it,  either  by  totally  stopping  it  or  putting  logs  across 
it  or  ploughing  over  it,  it  is  a  nuisancer  •  ^^  ^'^^ 

II.  As  to  the  remedies  which  the  law  has  given  for  this 
injury  or  nuisance,  I  must  premise  that  the  law  gives  no 
private  remedy  for  anything  but  a  private  wrong.  [219] 
Therefore  no  action  lies  for  a  public  or  common  nuisance, 
but  an  indictment  only.  Yet  this  rule  admits  of  one  excep- 
tion, where  a  private  person  suffers  some  extraordinary 
damage,  beyond  the  rest  of  the  king's  subjects,  by  a  public 
nuisance,  in  which  case  he  shall  have  a  private  satisfaction 
by  action.  [220]  As  if,  by  means  of  a  ditch  dug  across  the 
public  way,  which  is  a  common  nuisance,  a  man  or  his  horse 
suffer  any  injury  by  falling  therein,  there  for  this  particular 
damage,  which  is  not  common  to  others,  the  party  shall 
have  his  action.  Also  if  a  man  hath  abated,  or  removed,  a 
nuisance  which  offended  him,  in  this  case  he  is  entitled  to 
no  action.® 

The  remedies  by  suit  are,  1.  By  action  on  the  case  for 
damages,  in  which  the  party  injured  shall  only  recover  a 
satisfaction  for  the  injuries  sustained,  but  cannot  thereby 
remove  the  nuisance.  Indeed  every  continuance  of  a  nui- 
sance is  held  to  be  a  fresh  one,  and  therefore  a  fresh  action 
will  lie,  and  very  exemplary  damages  will  probably  be 
given,  if,  after  one  verdict  against  him,  the  defendant  has 
the  hardiness  to  continue  it.® 

The  law  provided  two  other  actions,  the  assize  of  nuisance  and  the 
writ  of  quod  permittat  prosternere,i  which  not  only  give  the  plaintiff 
satisfaction  for  his  injury  past,  but  also  strikes  at  the  root  and  remove 
the  cause  itself,  the  nuisance  that  occasioned  the  injury.  These  two 
actions,  however,  can  only  be  brought  by  the  tenant  of  the  freehold,  so 
that  a  lessee  for  years  is  confined  to  his  action  upon  the  case.2 

7.  See,  generally,  Cooley  on  Torts  9.  See  note  below,  also  vol.  2  of 
(Students'  Ed.),  ch.  12,  pp.  351,  362.  this  series,  title  Injunction. 

8.  Tiie  abator  may  maintain  an  ac-  1,  Because  he  permitted  to  throw 
tion  for  the  recovery  of  damages  sus-  down. 

tained  by  him  prior  to  the  abatement.  2.  Both  these  actions   are  obsolete, 

iiotwitiistanding  such  abatement.  Lan-       The    preventive    remedy    is    now    by 
sing  v.  Smith,  4  Wend.  9;   Pierce  v.       injunction. 
Dart,  7  Cow.  609;   Gleason  v.  Gary, 
4  Conn.  418. 


Chap.  XIV.]  Of  Waste.  •  527 


CHAPTER  XIV. 

OF  WASTE. 

Waste  is  a  spoil  and  destruction  of  the  estate,  either  in 
houses,  woods,  or  lands,  by  demolishing  not  the  temporary- 
profits  only,  but  the  very  substance  of  the  thing,  thereby 
rendering  it  wild  and  desolate.  [223]  Waste  is  either  vol-' 
Tintary  or  permissive,  the  one  by  an  actual  and  designed 
demolition  of  the  lands,  woods,  and  houses;  the  other  aris- 
ing from  mere  negligence  and  want  of  sufficient  care  in 
reparations,  fences,  and  the  like. 

I.  The  persons  who  may  be  injured  by  waste  are  such  as 
have  some  interest  in  the  estate  wasted;  for  if  a  man  be  the 
absolute  tenant  in  fee-simple,  without  any  incumbrance  or 
charge  on  the  premises,  he  may  commit  whatever  waste 
his  own  indiscretion  may  prompt  him  to,  without  being 
impeachable  or  accountable  for  it  to  any  one.   [224] 

One  species  of  interest  wliich  is  Injured  by  waste  is  that  of  a  person 
who  has  a  right  of  common  in  the  place  wasted,  especially  if  it  be  com- 
mon of  estovers,  or  a  right  of  cutting  and  carrying  away  wood  for  house- 
bote, plough-bote,  etc. 

But  the  most  usual  and  important  interest  that  is  hurt 
by  this  commission  of  waste  is  that  of  him  who  hath  the 
remainder  or  reversion  of  the  inheritance,  after  a  particular 
estate  for  life  or  years  in  being.  ^  Here,  if  the  particular 
tenant, —  be  it  the  tenant  in  dower  or  by  courtesy,  who  was 
answerable  for  waste  at  the  common  law,  or  the  lessee  for 
life  or  years,  who  was  first  made  liable  by  the  statutes  of 
Marlbridge  and  of  Gloucester, —  commits  or  suffers  any 
waste,  it  is  a  manifest  injury  to  him  that  has  the  inherit- 
ance. [225]  To  him,  therefore,  in  remainder  and  reversion 
to  whom  the  inheritance  appertains  in  expectancy,  the  law 
hath  given  an  adequate  remedy.  For  he  who  hath  the  re- 
mainder for  life  only  is  not  entitled  to  sue  for  waste,  since 
his  interest  may  never  perhaps  come  into  possession,  and 
then  he  hath  suffered  no  injury. 

1.  See  ante,  Waste,  and  note. 


528  Of  Waste.  [Book  III. 

II.  The  redress  for  this  injury  of  waste  is  of  two  kinds: 
preventive  and  corrective;  the  former  of  which  is  by  writ  of 
estrepemeut,  the  latter  by  that  of  waste. 

1.  Estrepement2  is  an  old  French  word  signifying  the  same  as  waste 
or  extirpation;  and  the  writ  of  estrepement  lay  at  the  common  law  afhr 
judgment  obtained  in  any  action  real,  and  before  possession  was  de- 
livered by  the  sheriff,  to  stop  any  waste  which  the  vanquished  party  be 
tempted  to  commit  in  lands  which  were  determined  to  be  no  longer  his. 
6ut  as  in  some  cases  the  demandant  may  be  justly  apprehensive  that  the 
tenant  may  make  waste  or  estrepement  pending  the  suit,  well  knowing 
the  weakness  of  his  title,  therefore  the  statute  of  Gloucester  gave  an- 
other writ  of  estrepement  pendente  placito,'i  commanding  the  sheriff  firmly 
to  inhibit  the  tenant  "ne  faciat  r>astum  vel  estrepementum,  pendente  placito 
dicto  indiscusso."  *  [226]  And  now  in  an  action  of  waste  [obsolete]  itself 
to  recover  the  place  wasted,  and  also  damages,  a  writ  of  estrepement  will 
lie  as  well  before  as  after  judgment. 

Besides  this  preventive  redress  at  common  law,  the  courts 
of  equity,  upon  bill  exhibited  therein  complaining  of  waste 
and  destruction,  will  grant  an  injunction  in  order  to  stay 
waste  until  the  defendant  shall  have  put  in  his  answer, 
and  the  court  shall  thereupon  make  further  order;  which 
is  now  become  the  most  usual  way  of  preventing  waste.^ 

2.  A  vrrit  of  waste  [obsolete;  the  remedy  now  is  by  an  action  on  the 
case]  is  also  an  action  partly  founded  upon  the  common  law,  and  partly 
upon  the  statute  of  Gloucester,  and  may  be  brought  by  him  who  hath  the 
immediate  estate  of  inheritance  in  reversion  or  remainder,  against  the 
tenant  for  life,  tenant  in  dower,  tenant  by  courtesy,  or  tenant  for  years. 
This  action  is  also  maintainable,  in  pursuance  of  statute  Westm.  2,  by 
one  tenant  in  common  of  the  inheritance  against  another  who  makes 
waste  in  the  estate  holden  in  common;  the  equity  of  which  statute  ex- 
tends to  joint  tenants  but  not  to  coparceners,  because  by  the  old  law 
coparceners  might  make  partition  whenever  either  of  them  thought 
proper,  and  thereby  prevent  future  waste,  but  tenants  in  common  and 
joint-tenants  could  not,  and  therefore  the  statutes  gave  them  this  remedy, 
compelling  the  defendant  either  to  make  partition  and  take  the  place 
wasted  to  his  own  share,  or  to  give  security  not  to  commit  any  further 
waste. 

2.  This  writ  is  still  in  use  in  Penn-  4.  That  he  do  not  commit  waste  or 
Fvlvania.  See  1  Bouvier  Law  Diet.,  devastation  during  the  pendency  of 
title   Estrepement,   §   4;    122   Pa.    St.      the  action. 

78.  5.  See   vol,    2    of   this   series,   title 

3.  Waste  pending  the  action.  'Injunction. 


CjfAP.  XIV.]  Of  Waste.  52!) 

This  action  of  waste  [obsolete]  is  a  mixed  action,  partly  real,  so  far 
as  it  recovers  land,  and  partly  personal,  so  far  as  it  recovers  damages; 
for  it  is  brought  for  both  those  purposes.  And  if  the  waste  be  proved 
the  plaintiff  shall  recover  the  thing  or  place  wasted,  and  also  treble 
damages,  by  the  statute  of  Gloucester.^  [228] 

The  defendant  on  the  trial  may  give  in  evidence  anything 
that  proves  there  was  no  waste  committed,  as  that  the  de- 
struction happened  by  lightning,  tempest,  the  king's  ene- 
mies, or  other  inevitable  accident.  But  it  is  no  defence  to 
say  that  a  stranger  did  the  waste,  for  against  him  the  plain- 
tiff hath  no  remedy,  though  the  defendant  is  entitled  to 
sue  such  stranger  in  an  action  of  trespass  vi>^t  armis,  and 
shall  recover  the  damages  he  has  suffered  in  consequence 
of  such  unlawful  act. 

6.  The  action  of  trespass  on  the 
case  is  the  proper  legal  remedy  of  the 
reversioner  to  recover  his  damages. 

34 


630  Of  Subtraction.  [Book  III. 

CHAPTER  XV. 

OF  SUBTRACTION. 

Subtraction,  which  is  the  fifth  species  of  injuries  affecting 
a  man's  real  property,  happens  when  any  person  who  owes 
any  suit,  duty,  custom,  or  service  to  another,  withdraws  or 
neglects  to  perform  it.  [230]  It  differs  from  a  disseisin, 
in  that  this  is  committed  without  any  denial  of  the  right, 
consisting  merely  of  non-performance;  that  strikes  at  the 
very  title  of  the  party  injured,  and  amounts  to  an  ouster 
or  actual  dispossession. 

Fealty,  suit  of  court  and  rents  are  duties  and  services 
usually  issuing  and  arising  ratione  tenurae,  being  the  con- 
ditions upon  which  the  ancient  lords  granted  out  their 
lands  ':o  their  feu'datories. 

The  general  remedy  for  all  these  is  by  distress,  and 
it  is  the  only  remedy  at  the  common  law  for  the  two  first 
of  them.  [231]  A  distress  is  the  taking  of  beasts,  or  other 
personal  property,  by  way  of  pledge  to  enforce  the  perform- 
ance of  something  due  from  the  party  distrained  upon. 
And  for  the  most  part  it  is  provided  that  distresses  be  rea- 
sonable and  moderate;  but  in  the  case  of  distress  for  fealty 
or  suit  of  court,  no  distress  can  be  unreasonable,  immod- 
erate, or  too  large,  for  this  is  the  only  remedy  to  which  the 
party  aggrieved  is  entitled,  and  therefore  it  ought  to  be 
such  as  is  sufficiently  compulsory. 

The  most  usual  other  remedy,  when  recourse  is  had  to 
any  action  at  all  for  the  recovery  of  pecuniary  rents,  is  by 
action  of  debt  for  the  breach  of  the  express  contract. 


Chap.  XVL]  Of  Disturbance.  531 


CHAPTER  XVL 

OF  DISTURBANCE. 

The  sixth  and  last  species  of  real  injuries  is  that  of  dis- 
turbance, which  is  usually  a  wrong  done  to  some  incorporeal 
hereditament,  by  hindering  or  disquieting  the  owners  in 
their  regular  and  lawful  enjoyment  of  it.  [236]  I  shall 
consider  five  sorts  of  this  injury;  viz.,  1.  Disturbance  of 
franchises;  2.  Disturbance  of  common;  3.  Disturbance  of 
ways;  4.  Disturbance  of  tenure;  5.  Disturbance  of  patronage. 

I.  Disturbance  of  franchises  happens  when  a  man  has  the  franchise 
of  holding  a  court-leet,  of  keeping  a  fair  or  market,  of  free-warren,  of 
taking  toll,  of  seising  waifs  or  estrays,  or  (in  short)  any  other  species 
of  franchise  whatsoever,  and  he  is  disturbed  or  incommoded  in  the  law- 
ful exercise  thereof.  To  remedy  which,  as  the  law  has  given  no  other 
writ,  he  is  therefore  entitled  to  sue  for  damages  by  a  special  action  on 
the  case,  or  in  case  of  toll,  may  take  a  distress  if  he  pleases.  [237] 

II.  The  disturbance  of  common  is  where  any  act  is  done  by  which  the 
right  of  another  to  his  common  is  incommoded  or  diminished;  [the 
remedies  for  which  are  either  by  distress,  action  of  trespass,  or  special 
action  on  the  case,  according  to  the  circumstances  of  the  case.  For 
details  see  text.] 

III.  Disturbance  of  ways  is  very  similar  in  its  nature  to  the  last;  it 
principally  happening  when  a  person  who  hath  a  right  to  a  way  over 
another's  grounds,  by  grant  or  prescription,  is  obstructed  by  inclosures 
or  other  obstacles,  or  by  ploughing  across  it;  by  which  means  he  can- 
not enjoy  his  right  of  way,  or  at  least  not  in  so  commodious  a  manner 
as  he  might  have  done.  [241]  If  this  be  a  way  annexed  to  his  estate, 
and  the  obstruction  is  made  by  the  tenant  of  the  land,  this  brings  it  to 
another  species  of  injury,  for  it  is  then  a  nuisance  for  which  an  assise 
will  lie,  as  mentioned  in  a  former  chapter.  But  if  the  right  of  way  thus 
obstructed  by  the  tenant  be  only  in  gross  (that  is,  annexed  to  a  man's 
person  and  unconnected  with  any  lands  or  tenements),  or  if  the  obstruc- 
tion of  a  way  belonging  to  a  house  or  land  is  made  by  a  stranger,  it  is 
then  in  either  case  merely  a  disturbance;  for  the  obstruction  of  a  way 
in  gross  is  no  detriment  to  any  lands  or  tenements,  and  therefore  does 
not  fall  under  the  legal  nof^on  of  a  nuisance,  which  must  be  laid  ad 
nocnmentum  liberl  tenementl,^  and  the  obstruction  of  it  by  a  stranger 
can  never  tend  to  put  the  right  of  way  in  dispute;  the  remedy,  therefore, 

1.  To  the  damasre  of  the  freehold. 


632  Of  Disturbange.  [Book  III.> 

for  these  disturbances  Is  not  by  assise  or  any  real  action,  but  by   the 
universal  remedy  ofaction  on  the  case  to  recover  damages.  [242] 

IV.  The  fourth  species  of  disturbance  is  that  of  disturbance  of  tenure, 
or  breaking  that  connection  which  subsists  between  the  lord  and  his 
tenant,  and  to  which  the  law  pays  so  high  a  regard  that  it  will  not  suffer 
it  to  be  wantonly  dissolved  by  the  act  of  a  third  person.  To  have  an 
estate  well  tenanted  is  an  advantage  that  every  landlord  must  be  very 
sensible  of,  and  therefore  the  driving  away  of  a  tenant  from  off  his 
estate  is  an  injury  of  no  small  conseqaence.  So  that  if  there  be  a  ten- 
ant at  will  of  any  lands  or  tenements,  and  a  stranger  either  by  menaces 
and  threats,  or  by  unlawful  distresses,  or  by  fraud  and  circumvention, 
or  other  means,  contrives  to  drive  him  away  or  inveigle  him  to  leave 
his  tenancy,  this  the  law  very  justly  construes  to  be  a  wrong  and  injury 
to  the  lord,  and  gives  him  a  reparation  in  damages  against  the  offender 
by  a  special  action  on  the  case. 

V.  The  fifth  species  of  disturbance  is  that  of  disturbance  of  patronage, 
which  is  an  hindrance  or  obstruction  of  a  patron  to  present  his  clerk 
lo  a  oeneflce.  [Not  applicable  to  this  country.  As  to  the  remedies  by 
writ  of  quare  impedU,  etc.,  see  the  text.] 


Chap.  XVII.]     Of  Injuries  by  or  to  the  Crown.  533 

CHAPTER  XVII. 

OF   INJURIES    PROCEEDING   FROM    OR   AFFECTING   THE    CROWN. 

I.  That  the  king  can  do  no  wrongs  is  a  necessary  and 
fundamental  principle  of  the  English  constitution,  meaning 
only  that  in  the  first  place  whatever  may  be  amiss  in  the 
conduct  of  public  affairs  is  not  chargeable  personally  on 
the  king,  nor  is  he,  but  his  ministers,  accountable  for  it  to 
the  people;  and  secondly,  that  the  prerogative  of  the  crown 
extends  not  to  do  any  injury;  for,  being  created  for  the 
benefit  of  the  people,  it  cannot  be  exerted  to  their  prejudice. 
[255]  Whenever,  therefore,  it  happens  that  by  misinfor- 
mation or  inadvertence  the  crown  hath  been  induced  to 
invade  the  private  rights  of  any  of  its  subjects,  though  no 
action  will  lie  against  the  sovereign,  yet  the  law  hath  fur- 
nished the  subject  with  a  decent  and  respectful  mode  of 
removing  that  invasion,  by  informing  the  king  of  the  true 
state  of  the  matter  in  dispute;  and  as  it  presumes  that  to 
know  of  any  injury  and  to  redress  it  are  inseparable  in  the 
royal  breast,  it  then  issues  as  of  course,  in  the  king's  own 
name,  his  orders  to  his  judges  to  do  justice  to  the  party 
aggrieved. 

It  rarely  can  happen  that  any  personal  injury  can  im- 
mediately and  directly  proceed  from  the  prince  to  any  pri- 
vate man;  and  as  it  can  so  seldom  happen,  the  law  in  de- 
cency supposes  that  it  never  will  or  can  happen  at  all, 
because  it  feels  itself  incapable  of  furnishing  any  adequate 
remedy  without  infringing  the  dignity  and  destroying  the 
sovereignty  of  the  royal  person,  by  setting  up  some  su- 
perior power  with  authority  to  call  him  to  account.  But 
injuries  to  the  rights  of  property  can  scarcely  be  committed 
by  the  crown  without  the  intervention  of  its  officers,  for 
whom  the  law  in  matters  of  right  entertains  no  respect  or 
delicacy,  but  furnishes  various  methods  of  detecting  the 
errors  or  misconduct  of  those  agents  by  whom  the  king 

1.  Rfx  von  potest  peccarr.     2  Roll. 
Rep.  304;  Broom's  Legal  Maxims,  *51. 


534  Of  Injuries  by  oe  to  the  Crown.      [Book  III. 

bas  been  deceived  and  induced  to  do  a  temporary  injus- 
tice.2 

The  common  law  methods  of  obtaining  possession  or  restitution  from 
the  crown  of  either  real  or  personal  property  are:  1.  By  petition  de  droit,- 
or  petition  of  right.  [256]  2.  By  monstrans  de  droit,  manifestation  or 
plea  of  right, — both  of  which  may  be  preferred  or  prosecuted  either  in 
the  Chancery  or  Exchequer.  [Not  applicable  to  this  country.]  The  for- 
mer is  of  use  where  the  king  is  in  full  possession  of  any  hereditaments 
or  chattels,  and  the  petitioner  suggests  such  a  right  as  controverts  the 
title  of  the  crown,  grounded  on  facts  disclosed  in  the  petition  itself, — 
in  which  case  he  must  be  careful  to  state  truly  the  whole  title  of  the 
crown,  otherwise  the  petition  shall  abate, — and  then,  upon  this  answer 
being  endorsed  or  underwritten  by  the  king,  soit  droit  fait  al  partie  (let 
right  be  done  to  the  party),  a  commission  shall  issue  to  inquire  of  the 
truth  of  this  suggestion;  after  the  return  of  which  the  king's  attorney 
is  at  liberty  to  plead  in  bar,  and  the  merits  shall  be  determined  upon 
issue  or  demurrer,  as  in  suits  between  subject  and  subject.  But  where 
the  right  of  the  party,  as  well  as  the  right  of  the  crown,  appears  upon 
record,  there  the  party  shall  have  monstrans  de  droit,  which  is  putting 
in  a  claim  of  right  grounded  on  facts  already  acknowledged  and  estab- 
lished, and  praying  the  judgment  of  the  court,  whether  upon  those  facts 
the  king  or  the  subject  hath  the  right.  But  as  this  sel'lom  happens,  and 
the  remedy  by  petition  was  extremely  tedious  and  expensive,  that  by 
monstrans  was  much  enlarged  and  rendered  almost  universal  by  several 
statutes,  particularly  36  Edw.  III.  c.  13,  and  2  &  3  Edw.  VI.  c.  8,  which 
also  allow  inquisitions  of  office*  to  be  traversed  or  denied  wherever  the 
right  of  a  subject  is  concerned,  except  in  a  very  few  cases.  [257]  These 
proceedings  are  had  in  the  petty-bag  ofllice  in  the  Court  of  Chancery; 
and  if  upon  either  of  them  the  right  be  determined  against  the  crown, 
the  judgment  is,  quod  manus  domini  regis  amoveantur  et  posscssio  restituatur 
petenti,  salvo  jure  domini  regis,  which  last  clause  is  always  added  to 
judgments  against  the  king,  to  whom  no  laches  is  ever  imputed,  and 
whose  right  (till  some  late  statutes)  was  never  defeated  by  any  limita- 
tion or  length  of  time.  And  by  such  judgment  the  crown  is  instantly  out 
of  possession,  so  that  there  needs  not  the  indecent  interposition  of  his 
own  officers  to  transfer  the  seisin  from  the  king  to  the  party  aggrieved. 

II.  The  methods  of  redressing  such  injuries  as  the  crown 
may  receive  from  the  subject  are, — 

1.  By  such  usual  common  law  actions  as  are  consistent 

2.  Unless  by  statute  or  constitution      state  is  by  petition.     Cooley's  Const, 
an    action   against  the   state   is   per-      Lim.   (7th  Ed.),  23. 
xnitted,    the   only    remedy    against   a 


Chap.  XVIL]     Of  Injuries  by  or  to  the  Crown.  535 

with  the  royal  prerogative  and  dignit3^^  As,  therefore,  the 
king,  by  reason  of  his  legal  ubiquity,  cannot  be  disseised 
or  dispossessed  of  any  real  property  which  is  once  vested 
in  him,  he  can  maintain  no  action  w^hich  supposes  a  dis- 
possession of  the  plaintiff,  such  as  an  assise  or  an  ejectment; 
but  he  may  bring  a  quare  impedit,  and  he  may  prosecute 
this  w^rit,  like  every  other  by  him  brought,  as  well  in  the 
King's  Bench  as  the  Common  Pleas,  or  in  whatever  court 
he  pleases.  So  too  he  may  bring  an  action  of  trespass  for 
taking  away  his  goods;  but  such  actions  are  not  usual 
(though  in  strictness  maintainable)  for  breaking  his  close, 
or  other  injury  done  upon  his  soil  or  possession. 

2.  Inquisition  or  inquest  of  office,  which  is  an  inquiry 
made  by  the  king's  officer,  his  sheriff,  coroner,  or  escheator, 
virtute  officii ^  or  by  writ  to  them  sent  for  that  purpose,  or 
by  commissioners  specially  appointed,  concerning  any  mat- 
ter that  entitles  the  king  to  the  possession  of  lands  or  tene- 
ments, goods  or  chattels.  [258]  This  is  done  by  a  jury  of 
no  determinate  number,  being  either  twelve,  or  less,  or 
more. 

These  inquests  of  office  were  devised  by  law  as  an  authentic  means  to 
give  the  king  his  right  by  solemn  matter  of  record,  without  which  he  in 
general  can  neither  take  nor  part  from  anything.  [259]  With  regard  to 
real  property,  if  an  office  be  found  for  the  king,  it  puts  him  in  immediate 
possession  without  the  trouble  of  a  formal  entrj',  provided  a  subject  in 
the  like  case  would  have  had  a  right  to  enter,  and  the  king  shall  re- 
ceive all  the  mesne  or  internjediate  profits  from  the  time  that  his  title 
accrued.  [260]  In  order  to  avoid  the  possession  of  the  crown  acquired 
by  the  finding  of  such  office,  the  subject  may  not  only  have  his  petition 
of  right,  which  discloses  new  facts  not  found  by  the  office,  and  his 
mcnstrans  de  droit,  which  relies  on  the  facts  as  found,  but  also  he  may 
(for  the  most  part)  traverse  or  deny  the  matter  of  fact  itself,  and  put  It 
in  a  course  of  trial  by  the  common  law  process  of  the  Court  of  Chancery; 

3.  A  state  may  sue  a  private  person  4.  By  virtue  of  his  office. 

or  a  corporation  in  its  own  courts  or  An  inquest  of  office,  or  office  found, 

the    courts    of    anotlier    state    in    the  is  a  not  uncommon  means  of  enforc- 

same   manner   as   an   individual.     As  ing  a  forfeiture  of  real  estate  to  the 

to  controversies  to  which  the  United  state   or   of   enforcing   an    escheat   of 

States  is  a  party  or  between  two  or  lands  in  the  several   states.     Consult 

xnore   states,    see   Cooley   Const.   Lim.  the  local  statutes.   See  1  Bouvier  Law 

(7th  Ed.),  23.  Diet.,  Inquest,  §§  1,  2. 


536  Of  In-juries  by  or  to  the  Crowx.      [Book  III. 

yet  still,  in  sdme  special  cases,  he  hath  no  remedy  left  but  a  mere  peti- 
tion of  right.  These  traverses  as  well  as  the  monstrans  de  droit  were 
greatly  enlarged  and  regulated  for  the  benefit  of  the  subject  by  the 
statutes  before  mentioned  and  others.  And  in  the  traverses  thus  given 
by  statute,  which  came  in  the  place  of  the  old  petition  of  right,  the  party 
traversing  is  considered  as  the  plaintiff,  and  must  therefore  make  out  his 
own  title  as  well  as  impeach  that  of  the  crown,  and  then  shall  have 
judgment  quod  manus  domini  regis  amovQantur,  etc. 

3.  Where  the  crown  hath  unadvisedly  granted  anything 
by  letters  patent  which  ought  not  to  be  granted,  or  where 
the  patentee  hath  done  an  act  that  amounts  to  a  forfeiture 
of  the  grant,  the  remedy  to  repeal  the  patent  is  by  writ  of 
scire  facias^  in  Chancery.  [261]  This  may  be  brought 
either  on  the  part  of  the  king  in  order  to  resume  the  thing 
granted,  or  if  the  grant  be  injurious  to  a  subject  the  king 
is  bound  of  right  to  permit  him  (upon  his  petition)  to  use 
his  royal  name  for  repealing  the  patent  in  a  scire  facias. 
And  so  also  if  upon  office  untruly  found  for  the  king  he 
grants  the  land  over  to  another,  he  who  is  grieved  thereby, 
and  traverses  the  office  itself,  is  entitled  before  issue  joined 
to  a  scire  facias  against  the  patentee,  in  order  to  avoid  the 
grant. 

4.  An  information  on  behalf  of  the  crown,  filed  in  the 
Exchequer  by  the  king's  Attorney-General,  is  a  method  of 
suit  for  recovering  money  or  other  chattels,  or  for  obtain- 
ing satisfaction  in  damages  for  any  personal  wrong  com- 
mitted in  the  lands  or  other  possessions  of  the  crown.  It 
differs  from  an  information  filed  in  the  Court  of  King's 
Bench  (of  which  we  shall  treat  in  the  next  book),  in  that 
this  is  instituted  to  redress  a  private  wrong  by  which  the 
property  of  the  crown  is  affected,  tliat  is  calculated  to  punish 
some  public  wrong  or  heinous  misdemeanor  in  the  defendant. 
It  is  grounded  on  no  writ  under  seal,  but  merely  on  the  iuti- 

5.  This  is  a  judicial  writ  founded  Diet.,  scire  facias ;  Graham's  Practice, 
upon  a  record  requiring  the  defendant  649;  2  Tidd's  Prac.  982;  2  Arcli. 
to  s/iotc  eawse  why  the  plaintiff  sliould  Prac.  76;  1  Green's  New  Prac.  ch. 
not  have  the  advantage  of  such  record  15,  sec.  1.  p.  *669;  Puterbtirgh's  Com. 
or  why  the  reeord  should  not  be  an-  Law,  Plead.  &  Pl-ac.  (7th  Ed.),  ch.  15. 
nulled  and  vacated.     1  Bouvier   Law 


CnAr.  XVII,]     Of  Injuries  by  ok  to  the  Crowit.  537 

mation  of  the  king's  officer,  the  Attorney-General,  who 
"gives  the  court  to  understand  and  be  informed  of"  the 
matter  in  question,  upon  which  the  party  is  put  to  answer, 
and  trial  is  had  as  in  suits  between  subject  and  subject.  The 
most  usual  informations  are  those  of  intrusion  and  debt: 
intrusion  for  any  trespass  committed  on  the  lands  of  the 
crown,  as  by  entering  thereon  without  title,  holding  over 
after  a  lease  is  determined,  taking  the  profits,  cutting  down 
timber,  or  the  like;  and  debt  upon  any  contract  for  moneys 
due  to  the  king,  or  for  any  forfeiture  due  to  the  crown  upon 
the  breach  of  a  penal  statute.  This  is  most  commonly  used 
to  recover  forfeitures  occasioned  by  transgressing  those  laws 
which  are  enacted  for  the  establishment  and  support  of  the 
revenue;  others  which  regard  mere  matters  of  police  and 
public  convenience  being  usually  left  to  be  enforced  by  com- 
mon informers  in  the  qui  term  informations  or  actions  of 
which  we  have  formerly  spoken.  [262]  But  after  the  At- 
torney-General has  informed  upon  the  breach  of  a  penal 
law,  no  other  information  can  be  received.  There  is  also 
an  information  in  rem  when  any  goods  are  supposed  to  be- 
come the  property  of  the  crown  and  no  man  appears  to 
claim  them  or  to  dispute  the  title  of  the  king;  as  anciently 
in  the  case  of  treasure-trove,  wrecks,  waifs,  and  estrays 
seized  by  the  king's  officer  for  his  use.  Upon  such  seizure 
an  information  w^as  usually  filed  in  the  king's  Exchequer, 
and  thereupon  a  proclamation  w^as  made  for  the  owner  (if 
any)  to  come  in  and  claim  the  effects,  and  at  the  same  time 
there  issued  a  commission  of  appraisement  to  value  the 
goods  in  the  officer's  hands;  after  the  return  of  which,  and 
a  second  proclamation  had,  if  no  claimant  appeared  the 
goods  were  supposed  derelict,  and  condemned  to  the  use  of 
the  crowm.  And  w^ien  in  later  times  forfeitures  of  the 
goods  themselves,  as  well  as  personal  penalties  on.  the 
parties,  were  inflicted  by  act  of  parliament  for  transgres- 
sions against  the  laws  of  the  customs  and  excise,  the  same 
process  was  adopted  in  order  to  secure  such  forfeited  goods 
for  the  public  use,  though  the  offender  himself  had  escaped 
the  reach  of  justice.  ■ 


538  Of  Injuries  by  oe  to  the  Crown.      [Book  III. 

5.  A  writ  of  quo  warranto^  is  in  tlie  nature  of  a  writ  of 
right  for  the  king  against  him  who  claims  or  usurps  any 
office,  franchise,  or  liberty,  to  inquire  by  what  authority  he 
supports  his  claim,  in  order  to  determine  the  right.  It  lies 
also  in  case  of  non-user  or  long  neglect  of  a  franchise,  or 
mis-user  or  abuse  of  it,  being  a  writ  commanding  the  de- 
fendant to  show  by  what  warrant  he  exercises  such  a  fran-. 
chise,  having  never  had  any  grant  of  it,  or  having  forfeited 
it  by  neglect  or  abuse.  Writs  of  quo  warranto  (if  brought 
at  all)  must  now  be  prosecuted  and  determined  before  the 
king's  justices  at  Westminster.  [263]  And  in  case  of  judg- 
ment for  the  defendant,  he  shall  have  an  allowance  of  his 
franchise;  but  in  case  of  judgment  for  the  king,  for  that 
the  party  is  entitled  to  no  such  franchise,  or  hath  disused 
or  abused  it,  the  franchise  is  either  seized  into  the  king's 
hands,  to  be  granted  out  again  to  whomever  he  shall  please, 
or  if  it  be  not  such  a  franchise  as  may  subsist  in  the  hands 
of  the  crown,  there  is  merely  judgment  of  ouster,  to  turn 
out  the  party  who  usurped  it. 

A  more  modem  method  of  prosecution  is  by  information 
filed  in  the  Court  of  King's  Bench  by  the  Attorney-General, 
in  the  nature  of  a  writ  of  quo  icanmivto"^  wherein  the  process 
is  speedier  and  the  judgment  not  quite  so  decisive.  .  This  is 
properly  a  criminal  method  of  prosecution,  as  well  to  punish 
the  usurper  by  a  fine  for  the  usurpation  of  the  franchise,  as 
to  oust  him  or  seize  it  for  the  crown,  but  hath  long  been 
applied  to  the  mere  purposes  of  trying  the  civil  right,  seiz- 
ing the  franchise,  or  ousting  the  wrongful  possessor,  the 
fine  being  nominal  only. 

This  proceeding  is  now  applied  to  the  decision  of  cor- 
poration disputes  between  party  and  party,  without  any 
intervention  of  the  prerogative,  by  virtue  of  the  statute  9 
Anne,  c.  20,  which  permits  an  information  in  nature  of  quo 

6.  By  what  warrant  or  authority.  or  the  right  to  exercise  the  franchise 
See  next  note  below.  of  being  a  corporation.     Consult  the 

7.  This  is  in  this  country  the  com-  local  statutes.  See,  also,  Puterburgh's 
won  method,  where  not  changed  by  Com.  Law,  Plead.  &  Prac.  (7th  Ed), 
statute,  as  it  has  been  in  many  in-  ch.  18,  p.  565;  1  Green's  New  Pra«. 
stances,  of  trying  the  title  to  an  oflBice  "IG. 


Chap.  XYII.]     Of  Injuries  by  or  to  the  Crowis".  539 

warranto  to  be  brought  with  leave  of  the  court,  at  the 
relation  of  any  person  desiring  to  prosecute  the  same  (who 
is  then  styled  the  relator),  against  any  person  usurping, 
intruding  into,  or  unlawfully  holding  any  franchise  or  office 
in  any  city,  borough,  or  town  corporate,  provides  for  its 
speedy  determination,  and  directs  that  if  the  defendant  be 
convicted  judgment  of  ouster  (as  well  as  a  fine)  may  be 
given  against  him,  and  that  the  relator  shall  pay  or  receive 
costs  according  to  the  event  of  the  suit.  [264] 

6.  The  writ  of  mandamus  is  also  made  by  the  same  stat- 
ute, 9  Anne,  c.  20,  a  most  full  and  effectual  remedy,  in  the 
first  place  for  refusal  of  admission  where  a  person  is  en- 
titled to  an  office  or  place  in  any  such  corporation,  and 
secondly,  for  wrongful  removal  when  a  person  is  legally 
possessed.^ 

8.  See  ante,  *350  and  note. 


)40 


Kemedy  by  Action. 


[Book  111. 


CHAPTEE  XVIII. 

OF  THE  PURSUIT  OF  REMEDIES  BY  ACTION,  AND  FIRST,  OF  THE 
ORIGINAL   WRIT. 

In  treating  of  remedies  by  action  at  common  law,  I  shall 
confine  myself  to  the  modern  method  of  practice  in  onr 
courts  of  judicature^  [271];  and  what  the  student  may 
expect  in  this  and  the  succeeding  chapters  is  an  account  of 
the  method  of  proceeding  in  and  prosecuting  a  suit  upon 
any  of  the  personal  writs  we  have  before  spoken  of  in  the 
Court  of  Common  Picas  at  Westminster,  that  being  the 
court  originally  constituted  for  the  prosecution  of  all  civil 
actions.'  In  giving  an  abstract  or  history  of  the  progress 
of  a  suit  through  the  Court  of  Common  Pleas,^  we  shall  at 


1.  In  the  United  States,  imprison- 
ment for  debt  being  generally  abol- 
ished, the  most  usual  method  of  com- 
mencing an  action  is  by  summons  is- 
sued out  of  and  returnable  to  the 
court  which  is  to  try  the  cause.  In 
cases  of  tort  and  in  some  cases  of 
debts  fraudulently  contracted,  upon 
making  affidavit  of  the  facts  and  ob- 
taining an  order  to  hold  to  bail  a 
suit  may  in  some  states  be  commenced 
by  capias.  No  original  writ,  in  the 
sense  used  by  the  author,  is  in  use  in 
tliis  country. 

Actions  maj',  in  some  states,  be 
commenced  in  several  ways.  Thus  in 
MichigRn  in  a  case  in  which  an  arrest 
would  be  warranted  by  law,  the  ac- 
tion may  be  commenced  by  an  ordi- 
nary summons,  by  the  entry  of  a  rule 
to  plead  and  service  of  the  declaration 
with  notice  of  such  rule  indorsed 
thereon  and  upon  obtaining  the  proper 
order,  filing  bonds,  etc.,  by  a  capias 
or  an  attachment.  In  many  states 
actions  arc  begun  by  filing  a  petition 
and  the   issuance  of  a   summons,  or 


by  serving  a  copy  of  the  petition. 

In  the  federal  district  courts,  except 
in  admiralty  and  equity  cases,  the 
same  pleading  and  practice  prevails 
as  in  the  state  in  which  the  court  is 
held,  as  nearly  as  may  be  applicable. 
Rev.   Stat.   U.   S.,   sees.   914-916. 

The  student  should  consult  the  local 
statutes  and  books  of  practice.  The 
method  set  forth  in  the  text  should 
be  studied,  as  it  is  the  foundation  of 
more  modern  practice  and  necessary 
to  its  full  understanding. 

2.  Tlie  student  will  do  well  to  read 
the  following  remarks  of  our  au- 
tlior  found  in  his  note  to  page  *271: 
■'  In  deducing  this  historv  the  student 
must  not  expect  authorities  to  be  cnn- 
.stantly  cited;  as  practical  knowledge 
is  not  so  much  to  be  learned  from  any 
books  of  law,  as  from  experience  and 
attendance  on  the  courts.  The  com- 
piler must  therefore  be  frequently 
obliged  to  rely  upon  his  own  obser- 
vations; which  in  general  he  hath 
been  studious  to  avoid  where  those  of 
any  other  might  be  had.     To  accom- 


Chap.  XVIIL]  Remedy  by  Action.  541 

the  same  time  give  a  general  account  of  the  proceedings  of 
the  other  two  courts;  taking  notice,  however,  of  any  con- 
siderable difference  in  the  local  practice  of  each.  [272] 

The  general  and  orderly  parts  of  a  suit  are  these :  1.  The 
original  Writ.  2.  The  process.  3.  The  pleadings.  4.  The 
issue  or  demurrer.  5.  The  trial.  6.  The  judgment  and  it« 
incidents.  7.  The  proceedings  in  nature  of  appeals.  8.  The 
execution. 

First,  then,  of  the  original,  or  original  writ,  which  is  the 
beginning  or  foundation  of  the  suit.  When  a  person  hath 
received  an  injury  and  thinks  it  worth  his  while  to  demand 
a  satisfaction  for  it,  he  is  to  -consider  with  himself  or  take 
advice  what  redress  the  law  has  given  for  that  injury,  and 
thereupon  is  to  make  application  or  suit  to  the  crown,  the 
fountain  of  all  justice,  for  that  particular  specific  remedy 
which  he  is  determined  or  advised  to  pursue.  [273]  To 
this  end  he  is  to  sue  out,  or  purchase  by  paying  the  stated 
fees,  an  original,  or  original  writ,  from  the  Court  of  Chan- 
cery, which  is  the  officina  justitiae,  the  shop  or  mint  of  jus- 
tice, wherein  all  the  king's  writs  are  framed.  It  is  a  man- 
datory letter  from  the  king  in  parchment,  sealed  with  his 
great  seal,  and  directed  to  the  sheriff  of  the  county  wherein 

pany    and    illustrate    these    remarks,  (like    the    rest    of    his     posthumoua 

such  gentlemen  as  are  designed  for  the  works)    it  has  suffered  most  grossly 

profession    will    find    it   necessary    to  by   ignorant   or  careless   transcribers, 

peruse   the  books  of  entries,   ancient  yet   it   has   traced   out  the  reason   of 

and  modern;  which  are  transcripts  of  many   parts   of   our  modern    practice 

proceedings    that    have    been    had    in  from  the  feodal  institutions  and  the 

some  particular  actions.     A  book  or  primitive  construction  of  our  courts, 

two  of  technical  learning  will  also  be  in  a   most  clear  and   ingenious  man^- 

found  very  convenient;  from  which  a  ner." 

man  of  liberal  education  and  tolerable  The  student  may  also,  when  exam- 

tmderstanding  may  glean  pro  re  nata  ining  a  question  of  common  law  prac- 

as  much  as   is  sufficient  for  his  pur-  tice  or  procedure,  consult  with  profit, 

pose.    These  books  of  practice,  as  they  Tidd's     Practice;      Chitty's     General 

are  called,  are  all  pretty  much  on  a  Practice;  Graham's  (N.  Y. )  Practice; 

level,  in  point  of  composition  and  solid  Burrill's     (N.    Y.)     Practice;     Puter- 

iilstruction ;  so  that  that  which  bears  burgh's  Com.  Law,  Plead.  &  Practice 

the  latest  edition  is  usually  the  best.  (7th  Ed.)  ;  Green's  New  Practice,  and 

But  Gilbert's  history  and  practice  of  Hughe's  Federal  Procedure.   The  local 

the  court  of  common  pleas  is  a  book  statutes  and  works  on  Practice  shoutd 

of  a  very  different  stamp ;  and  though  of  course  always  be  consulted. 


542  Remedy  by  Action.  [Book  III. 

the  injury  is  committed  or  supposed  so  to  be,  requiring  him 
to  command  the  wrong-doer  or  party  accused  either  to  do 
justice  to  the  complainant,  or  else  to  appear  in  court  and 
answer  the  accusation  against  him.  Whatever  the  sheriff 
does  in  pursuance  of  this  writ  he  must  return  or  certify  to 
the  Court  of  Common  Pleas,  together  with  the  writ  itself, 
which  is  the  foundation  of  the  jurisdiction  of  that  court, 
being  the  king's  warrant  for  the  judges  to  proceed  to  the 
determination  of  the  cause.^ 

Original  writs  are  either  optional  or  peremptory,  or,  in  the  language 
of  our  lawyers,  they  are  either  a  praecipe  or  a  si  te  fecerit  securum.  [274] 
The  praecipe  is  in  the  alternative,  commanding  the  defendant  to  do  the 
thing  required,  or  show  the  reason  wherefore  he  hath  not  done  it.  The 
use  of  this  writ  is  where  something  certain  is  demanded  by  the  plain  tilt 
which  it  is  incumbent  on  the  defendant  himself  to  perform.  The  other 
species  of  original  writs  is  called  a  si  fecerit  te  seciiruni,  from  the  words 
of  the  writ,  which  directs  the  sheriff  to  cause  the  defendant  to  appear 
in  court  without  any  option  given  him,  provided  the  plaintiff  gives  the 
sheriff  security  effectually  to  prosecute  his  claim.  This  writ  is  in  use 
where  nothing  is  specifically  demanded,  but  only  a  satisfaction  in  gen- 
eral, to  obtain  which  and  minister  complete  redress  the  intervention  of 
some  judicature  is  necessary.  Such  are  writs  of  trespass  or  on  the  case, 
wherein  no  debt  or  other  specific  thing  is  sued  for  in  certain,  but  only 
damages  to  be  assessed  by  a  jury.  Both  species  of  writs  are  tested^  or 
witnessed  in  the  king's  own  name, — "  witness  ourselves  at  Westminster," 
or  wherever  the  Chancery  may  be  held.  The  security  here  spoken  of  to 
be  given  by  the  plaintiff  for  prosecuting  his  claim,  is  common  to  both 
writs,  though  it  gives  denomination  only  to  the  latter.  [275]  The  whole 
of  it  is  at  present  become  a  mere  matter  of  form,  and  John  Doe  and 
Richard  Roe  are  always  returned  as  the  standing  pledges  for  this  purpose. 

The  day  on  which  the  defendant  is  ordered  to  appear  in  court,  and  on 
which  the  sheriff  is  to  bring  in  the  writ  and  report  how  far  he  has  obeyed 
it,  is  called  the  return  of  the  writ,  it  being  then  returned  by  him  to  (he 
king's  justices  at  Westminster.5  And  it  is  always  made  returnable  at 
the  distance  of  at  least  fifteen  days  from  the  date  or  teste,  that  the  de- 
fendant may  have  time  to  come  up  to  Westminster,  even  from  the  most 


3.  Original  writs  are  no  longer  used  and  signed  by  the  sheriff,  marshal  or 
in  this  country.  other    officer    authorized    by    law    to 

4.  The  teste  of  any  writ  is  import-  malie  the  service.  If  served  by  a  dep- 
aut  even  now.  Consult  the  statutes  uty  the  return  should  be  signed  in 
and  constitution.  the  name  of  his  principal  by  himself 

d.  The  return  to  the  writ  as  to  the  as  deputy, 
manner  of  service  ie  indorsed  thereon 


Chap.  XVIII.]  Remedy  by  Action.  543 

remote  parts  of  the  kingdom,  and  upon  some  day  in  one  of  the  four 
terms  in  which  the  court  sits  for  the  despatch  of  business. 

There  are  in  each  of  these  terms  stated  days  called  days  in  bank» 
dies  in  banco,  that  is,  days  of  appearance  in  the  court  of  common  bench. 
[277]  They  are  generally  at  the  distance  of  about  a  week  from  each 
other,  and  have  reference  to  some  festival  of  the  Church.  On  some  one 
of  these  days  in  bank  all  original  writs  must  be  made  returnable,  and 
therefore  they  are  generally  called  the  returns  of  that  term.  But  though 
many  of  the  return  days  are  fixed  upon  Sundays,  yet  the  court  never 
sits  to  receive  these  returns  till  the  Monday  after,  and  therefore  no  pro- 
ceedings can  be  held  or  judgment  can  be  given,  or  supposed  to  be  given, 
on  the  Sunday. 

The  first  return  in  every  term  is,  properly  speaking,  the  first  day  in 
that  term.  [278]  And  thereon  the  court  sits  to  take  essoigns,  or  excuses 
for  such  as  do  not  appear  according  to  the  summons  of  the  writ;  where- 
fore this  is  usually  called  the  essoign  day  of  the  term.  But  on  every  re- 
turn-day in  the  term  the  person  summoned  has  three  days  of  grace 
beyond  the  day  named  in  tJie  writ  in  which  to  make  his  appearance; 
and  if  he  appears  on  the  fourth  day  inclusive,  quarto  die  post,  it  is  sufli- 
cient.  Therefore  at  the  beginning  of  each  term  the  court  does  not  usually 
sit  for  despatch  of  business  till  the  fourth  or  appearance  day. 


544  Of  PitocEss.  [Book  III. 


CHAPTER  XIX. 

OF   PROCESS. 

The  next  step  for  carrying  on  the  suit,  after  suing  out 
the  original,  is  called  the  process,  being  the  means  of  com- 
pelling the  defendant  to  appear  in  court.^  [279]  This  is 
sometimes  called  original  process,  being  founded  upon  the 
original  writ,  and  also  to  distinguish  it  from  mesne,  or  in- 
termediate process,  which  issues,  pending  the  suit  upon 
some  collateral  interlocutory  matter,  as  to  summon  juries, 
witnesses,  and  the  like.  Mesne  process  is  also  sometimes 
put  in  contradistinction  to  final  process,  or  process  of  execu- 
tion, and  then  it  signifies  all  such  process  as  intervenes  be- 
tween the  beginning  and  end  of  a  suit. 

But  process,  as  we  are  now  to  consider  it,  i»  the  method  taken  by  the 
law  to  compel  a  compliance  with  the  original  wr4t,  of  which  the  primary 
step  is  by  giving  the  party  notice  to  obey  it.  This  notice  is  given  upon 
all  real  praecipes,  and  also  upon  all  personal  writs  for  injuries  not  against 
the  peace,  by  summons,  which  is  a  warning  to  appear  in  court  at  the 
return  of  the  original  writ,  given  to  the  defendant  by  two  of  the  sheriff's 
messengers,  called  summoners,  either  in  person  or  left  at  his  house  or 
land. 

If  the  defendant  disobeys  this  verbal  monition,  the  next  process  is  by 
writ  of  attachment,-  or  pone,  so  called  from  the  words  of  the  writ,  "  pone 
per  vadium  et  salvos  plegios,  put  by  gage  and  safe  pledges  A.  B.  the  de- 
fendant, etc."  [280]  This  is  a  writ  not  issuing  out  of  Chancery,  but  out 
of  the  Court  of  Common  Pleas,  being  grounded  on  the  non-appearance 
of  the  defendant  at  the  return  of  the  original  writ;  and  thereby  the 
sheriff  is  commanded  to  attach  him,  by  taking  gage,  that  is,  certain  of  his 
goods,  which  he  shall  forfeit  if  he  doth  not  appear,  or  by  making  him 
find  safe  pledges  or  sureties,  who  shall  be  amerced  in  case  of  his  non- 
appearance. This  is  also  the  first  and  immediate  process,  without  any 
previous  summons,  upon  actions  of  trespass  vi  et  armis  or  for  other  in- 
juries, which,  though  not  forcible,  are  yet  trespasses  against  the  peace, 
as  deceit  and  conspiracy, 

1.  In  this  country  process  to  compel  tiie  plaintiff's  demand,  and  judgment 

an    appearance,    in    the   sense   of    tlie  may  be  talcen  against  him  by  default, 
author,  ia  not   in  use,  but  if  the  de-  2.  This  is  not  the  statutory  writ  of 

fendant   does   not  appear,  but  makes  attacliment  so  commonly  used  against 

default,  he   is  regarded  as  confessing  fraudulent  debtors. 


Chap,  XIX.J  Of  Process.  545 

If  after  attachmeDt  the  defendant  neglects  to  appear,  he  not  only  for- 
feits this  security,  but  is  moreover  to  be  further  compelled  by  writ  of 
distringas,  or  distress  infinite,  which  is  a  subsequent  process  issuing  from 
the  Court  of  Common  Pleas,  commanding  the  sheriff  to  distrain  the  de- 
fendant from  time  to  time,  and  continually  afterwards,  by  taking  his 
goods  and  the  profits  of  his  lands,  which  are  called  issues^  and  which 
by  the  common  law  he  forfeits  to  the  king  if  he  doth  not  appear.  But 
now  the  issues  may  be  sold,  if  the  court  shall  so  direct,  in  order  to  de- 
fray the  reasonable  costs  of  the  plaintiff. 

And  here  by  the  common  as  well  as  the  civil  law  the  process  ended  in 
case  of  injuries  without  force.  [281]  But  in  case  of  injury  accompanied 
with  force,  the  law,  to  punish  the  breach  of  the  peace  and  prevent  its 
disturbance  for  the  future,  provided  also  a  process  against  the  defend- 
ant's person  in  case  he  neglected  to  appear  upon  the  former  process  of 
attachment  or  had  no  substance  whereby  to  be  attached,  subjecting  his 
body  to  imprisonment  by  the  writ  of  capias  ad  respondendum.^  But 
this  immunity  of  the  defendant's  person,  in  case  of  peaceable  though 
fraudulent  injuries,  producing  great  contempt  of  the  law  in  indi'gent 
wrongdoers,  a  capias  was  also  allowed  to  arrest  the  person  in  actions  of 
■account,  though  no  breach  of  the  peace  be  suggested,  by  the  statutes  of 
Marlbridge,  52  Hen.  III.  c.  23,  and  Westm.  2,  13  Edw.  I.  c.  11,  in  actions  of 
<ielt  and  detinue  by  statute  25  Edw.  III.  c.  17,  and  in  all  actions  on  the  case 
by  statute  19  Hen.  VII.  c.  9. 

If,  therefore,  the  defendant,  being  summoned  Or  attached,  makes  de- 
fault and  neglects  to  appear,  or  if  the  sheriff  returns  a  nihil,  or  that  the 
defendant  hath  nothing  whereby  he  may  be  summoned,  attached,  or  dis- 
trained, the  capias  now  usually  issues,  being  a  writ  commanding  the 
sheriff  to  take  the  body  of  the  defendant  if  he  may  be  found  in  his  baili- 
wick or  county,  and  him  safely  to  keep,  so  that  he  may  have  him  in 
court  on  the  day  of  the  return  to  answer  to  the  plaintiff  of  a  plea  of 
debt  or  trespass,  etc.,  as  the  case  may  be.  [282]  This  writ  and  all  others 
subsequent  to  the  original  writ  not  issuing  out  of  Chancery,  but  from  the 
court  into  which  the  original  was  returnable,  and  being  grounded  on 
what  has  passed  in  that  court  in  consequence  of  the  sheriff's  return,  are 
called  judicial,  not  original,  writs.  They  issue  under  the  private  seal 
of  that  court  and  not  under  the  Great  Seal  of  England,  and  are  tested, 
not  in  the  king's  name,  but  in  that  of  the  chief  (or,  if  there  be  no  chief, 
of  the  senior)  justice  only.*    And  these  several  writs  being  grounded  on 

3.  Take  to  answer.  dated  on  the  day  it  issues,  be  sealed 

4.  See  the  constitution  and  local  with  the  seal  of  the  court  from  which 
statutes  as  to  teste,  etc.,  of  writs.  it  issues  and  made  returnable  on  the 
For  example,  in  Michigan  (Const.,  first  day  of  the  next  succeeding  term, 
art.  6,  sec.  35),  process  must  run  "In  It  must  l>e  directed  to  the  sheriff 
the  name  of  the  people  of  the  state  of  the  same  county;  or,  if  the  sheriiT 
of  Michigan,"  be  tested  in  the  name  is  a  party  to  the  suit,  then  to  the 
of    the    circuit    judge,    and    must    be  coroner,  etc.    See  1  Green's  New  Pra«- 


646  Of  Peocbss.  [Book  III. 

the  sheriff's  return,  must  respectively  bear  date  the  same  day  on  which 
the  writ  immediately  preceding  was  returnable. 

This  is  the  regular  and  ordinary  method  of  process.  But  it  is  now 
usual  in  practice  to  sue  out  the  capias  in  the  iirst  instance,  upon  a  sup- 
posed return  of  the  sheriff,  especially  if  it  be  suspected  that  the  defend- 
ant, upon  notice  of  the  action,  will  abscond;  and  afterwards  a  fictitious 
original  is  drawn  up,  if  the  party  is  called  upon  so  to  do,  with  a  proper 
return  thereupon,  in  order  to  give  the  proceedings  a  color  of  regularity. 
When  this  capias  is  delivered  to  the  sheriff,  he  by  his  under-sheriff  grants 
a  warrant  to  his  Inferior  officers  or  bailiffs  to  execute  it  on  the  defendant. 
And  if  the  sheriff  of  Oxfordsliire  (in  which  county  the  injury  is  supposed 
to  be  committed  and  the  action  is  laid)  cannot  find  the  defendant  in  his 
jurisdiction,  he  returns  that  he  is  not  found,  uon  est  inventus,^'  in  his 
bailiwick,  whereupon  another  writ  issues,  called  a  testatum  capias, 
directed  to  the  sheriff  of  the  county  where  the  defendant  is  supposed 
to  reside,  as  of  Berkshire,  reciting  the  farmer  writ,  and  that  it  is  testified 
(testatum  est)  that  the  defendant  lurks  or  wanders  in  his  bailiwick, 
whefefore  he  is  commanded  to  take  him  as  in  the  former  capias.  [283] 
But  here,  also,  when  the  action  is  brought  in  one  county  and  the  de- 
fendant lives  in  another,  it  is  usual,  for  saving  trouble,  time,  and  ex- 
pense, to  make  out  a  testatum  capias  at  the  first,  supposing  not  only  an 
original  but  a  former  capias  to  have  been  granted,  which  in  fact  never 
was.  And  this  fiction,  being  beneficial  to  all  parties,  is  readily  acquiesced 
in,  and  is  now  become  the  settled  practice. 

Bnt  where  a  defendant  absconds,  and  the  plaintiff  would  proceed  to  an 
outlawry  against  him,  an  original  writ  must  then  be  sued  out  regularly, 
and  after  that  a  capias.  [Outlawry  in  civil  cases  is  abolished  in  this 
country.]  And  if  the  sheriff  cannot  find  the  defendant  upon  the  first 
writ  of  capias,  and  return  a  non  est  inventus,  there  issues  out  an  alias  ^ 
writ,  and  after  that  a  pluries,^  to  the  same  effect  as  the  former,  only 
after  these  words,  "we  command  you,"  this  clause  is  inserted:  "as  we 
have  formerly,"  or,  "  as  we  have  often  commanded  you  "  ("  sicut  alias," 
or  "sicut  pluries,  praecipimus") .  And  if  a  non  est  inventus  is  returned 
upon  all  of  them,  then  a  writ  of  exigent,  or  exigi  facias,^  may  be  sued 
out,  which  requires  the  sheriff  to  cause  the  defendant  to  be  proclaimed, 
required,  or  exacted  in  five  county  courts  successively  to  render  him- 
self, and  if  he  does,  then  to  take  him  as  in  a  capias;  but  if  he  does  not 
appear,  and  is  returned  quinto  cxnctus,^  he  shall  then  be  outlawed  by  the 
coroners  of  the  county.  Also,  by  S'tatutes  6  Hen.  VIII.  c.  4,  and  31  Bliz. 
c.  3,  whether  the  defendant  dwells  within  the  same  or  another  county 
than  that  wherein  the  exigent  As  sued  out,  a  writ  of  proclamation  shall 

tice,     107;     Puterburgh     Com.    Law,  5.  He  has  not  been  found. 

Plpad.  &  Prac.   (7th  Ed.),  22;   Const.  6.  Another. 

111.,  art.  6,  8PC.  33;   Parris  v.  People,  7.  Several. 

76  111.  274;   Sidewell  v.  Schumacher,  8.  Cause  to  be  required. 

99  id.  426.  9.  Called  the  fifth  time. 


Chap.  XIX.]  Of  Peocess.  547 

issue  out  at  the  same  time  with  the  exigent,  commanding  the  sheriff  of 
the  county  wherein  the  defendant  dwells  to  make  three  proclamations 
thereof  In  places  the  most  notorious  and  most  likely  to  come  to  his 
knowledge  a  month  before  the  outlawry  shall  take  place.  [284]  Such 
outlawry  is  putting  a  man  out  of  the  protection  of  the  law,  so  that  he  is 
incapable  to  bring  an  action  for  redress  of  injuries,  and  it  is  also  at- 
tended with  a  forfeiture  of  all  one's  goods  and  chattels  to  the  king.  If 
after  outlawry  the  defendant  appears  publicly,  he  may  be  arrested  by  a 
writ  of  capias  utlagatum  i  and  committed  till  the  outlawry  be  reversed ; 
which  reversal  may  be  had  by  the  defendant's  appearaing  personally  in 
court  or  by  attorney  (though  in  the  King's  Bench  he  could  not  appear 
by  attorney  till  permitted  by  statute  4  &  5  W.  &  M.  c.  18),  and  any 
plausible  cause,  however  slight,  will  in  general  be  sufficient  to  reverse 
it,  it  b-eing  considered  only  as  a  process  to  compel  an  appearance.  But 
then  the  defendant  must  pay  full  costs,  and  put  the  plaintiff  in  the  same 
condition  as  if  he  had  appeared  before  the  writ  of  exigi  facias  was 
awarded. 

Such  is  the  first  process  in  the  Court  of  Common  Pleas.  In  the  King's 
Bench  they  may  also  (and  frequently  do)  proceed  in  certain  causes,  par- 
ticularly in  actions  of  ejectment  and  trespass,  by  original  writ,  with 
attachment  and  capias  thereon,  returnable,  not  at  Westminster,  where  the 
Common  Pleas  are  now  fixed  in  consequence  of  Magna  Carta,  but 
"  ubicunque  fuerimus  in  Anglia,"  2  wheresoever  the  king  shall  then  be  in 
England.  [285]  But  the  more  usual  method  of  proceeding  therein  is 
without  any  original,  but, by  a  peculiar  species  of  process  entitled  a  bill 
of  Middlesex,  and  therefore  so  entitled  because  <the  court  now  sits  in 
that  county;  for  if  it  sat  in  Kent,  it  would  then  be  a  bill  of  Kent.  The 
bill  of  Middlesex,  which  was  formerly  always  founded  on  a  plaint  of 
trespass  quare  clausum  f regit 's  entered  on  the  records  of  the  court,  is  a 
kind  of  capias  directed  to  the  sheriff  of  that  county,  and  commanding 
him  to  take  the  defendant  and  have  him  before  our  lord  the  king  at 
Westminster  on  a  day  prefixed  to  answer  to  the  plaintiff  of  a  plea  of 
trespass.  For  this  accusation  of  trespass  it  is  that  gives  the  Court  of 
King's  Bench  jurisdiction  in  other  civil  causes,  as  was  formerly  ob- 
served, since  when  once  the  defendant  is  taken  into  custody  of  the  mar- 
shal or  prison-keeper  of  this  court  for  the  supposed  trespass,  he,  being 
tlien  a  prisoner  of  this  court,  may  here  be  prosecuted  for  any  other 
species  of  injury.  Yet  in  order  to  foun^  this  jurisdiction  it  is  not  neces- 
sary that  the  defendant  be  actually  the  marshal's  prisoner,  for  as  soon 
as  he  appears  or  puts  in  bail  to  the  process  he  is  deemed  by  so  doing 
to  be  in  such  custody  of  the  marshal  as  will  give  the  court  a  jurisdiction 
to  praceed.  [286]  And  upon  these  accounts  in  the  bill  or  process  a 
complaint  of  trespass  is  always  suggested,  whatever  else  may  be  the 
real  cause  of  action.     This  bill  of  Middk-sex  must  be  served  on  the  de- 


1.  Take  the  outlaw.  3.  Wherefore  he  broke  and  entered. 

2.  Wherever  we  are  in  England. 


548  Of  Puocess.  [Book  IIT. 

fendant  by  the  sheriff  if  he  finds  him  in  that  county,  but  if  he  returns 
"  MOM  est  invenius,"  then  there  issues  out  a  writ  of  latitat  to  the  sheriff 
of  another  county,  as  Berks,  which  is  similar  to  the  testatum  capias  iu 
the  Common  Pleas,  and  recites  the  bill  of  Middlesex  and  the  proceed- 
ings thereon,  and  that  it  is  testified  that  the  defendant  "  latitat  et  dis- 
currit,''  lurks  and  wanders  about  in  Berks,  and  therefore  commands  the 
sheriff  to  take  him  and  have  his  body  in  court  on  the  day  of  the  return. 
But  as  in  the  Common  Pleas  the  testatum  capias  may  be  sued  out  upon 
only  a  supposed  and  not  an  actual  preceding  capias,  so  In  the  King's 
Bench  a  latitat  is  usually  sued  out  updh  only  a  supposed  and  not  an 
actual  bill  of  Middlesex.  So  that  in  fact  a  latitat  may  be  called  the  first 
process  in  the  Court  of  King's  Bench,  as  the  testatum  capias  is  in  the 
Common  Pleas.  Yet,  as  in  the  Common  Pleas,  if  the  defendant  lives 
in  the  county  wherein  the  action  is  laid,  a  common  capias  suffices;  so  in 
the  King's  Bench,  likewise,  if  he  lives  in  Middlesex,  the  process  must 
still  be  by  bill  of  Middlesex  only. 

In  the  Exchequer  the  iirst  process  is  by  writ  of  quo  minus,  in  order 
to  give  the  court  a  jurisdiction  over  pleas  between  party  and  party;  in 
which  writ  the  plaintiff  is  alleged  to  be  the  king's  farmer  or  debtor, 
and  that  the  defendant  hath  done  him  the  injury  complained  of,  quo 
minus  sufficiens  exisit,*  by  which  he  is  the  less  able  to  pay  the  king  his 
rent  or  debt.  And  upon  this  the  defendant  may  be  arrested  as  upon  a 
capias  from  the  Common  Pleas. 

Thus  differently  do  the  three  courts  set  out  at  first  in  the  commence- 
ment of  a  suit.  Afterwards,  when  the  cause  is  ,once  drawn  into  the  re- 
spective courts,  the  method  of  pursuing  it  is  pretty  much  the  same  ia 
all  of  them. 

If  the  sheriff  has  found  the  defendant  upon  any  of  the  former  writs^ 
the  capias,  latitat,  etc. — he  was  anciently  obliged  to  take  him  into  cus- 
tody, in  order  to  produce  him  in  court  upon  the  return,  however  small 
and  minute  the  cause  of  action  might  be.  [287]  For,  not  having  obeyed 
the  original  summons,  he  had  shown  a  contempt  of  the  court,  and  was 
no  longer  to  be  trusted  at  large.  But  when  the  summons  fell  into  disuse, 
and  the  capias  became  in  fact  the  first  process,  it  was  thought  hard  to 
Imprison  a  man  for  a  contempt  which  was  only  supposed,  and  therefore 
in  common  cases,  by  the  gradual  indulgence  of  the  courts  (at  length 
authorized  by  statute  12  Geo.  I.  c.  29,  which  was  amended  by  5  Geo.  II. 
c.  27,  made  perpetual  by  21  Geo.  ^I.  c.  3,  and  extended  to  all  inferior 
courts' by  19  Geo.  III.  c.  70),  the  sheriff  or  proper  officer  can  now  only 
personally  serve  the  defendant  with  the  copy  of  the  writ  or  process,  and 
with  notice  in  writing  to  appear  by  his  attorney  in  court  to  defend  this 
action,  which  in  effect  reduces  it  to  a  mere  summons.  And  if  the  de- 
fendant thinks  proper  to  appear  upon  this  notice,  his  appearance  is 
recorded,  and  he  puts  in  sureties  for  his  future  attendance  and  obedi- 


4.  By   wliicli    lesa   than  enough   re- 
mains. 


CiiAP.  XIX.]  Of  Process.  549 

ence;  which  sureties  are  called  common  bail,  being  the  same  two  im- 
aginary persons  that  were  pledged  for  the  plaintiff's  prosecution,  John 
Doe  and  Richard  Roe.  Or,  if  the  defendant  does  not  appear  upon  the 
return  of  the  writ,  or  within  four  (or,  in  some  cases,  eight)  days  after, 
the  plaintiff  may  enter  an  appearance  to  him  as  if  he  had  really  appeared, 
and  may  file  common  bail  in  the  defendant's  name,  and  proceed  there- 
upon as  if  the  defendant  had  done  it  himself. 

But  if  the  plaintiff  will  make  aftidaylt,  or  assert  upon  oath,  that  the 
cause  of  action  amounts  to  ten  pounds  or  upwards,  then  he  may  arrest 
the  defendant  and  make  him  put  in  substantial  sureties  for  his  appear- 
ance, called  special  bail;^  in  order  to  which  it  is  required  by  statute  13 
Car.  II.  St.  2,  c.  2,  that  the  true  cause  of  action  should  be  expressed  in 
the  body  of  the  writ  or  process,  else  no  security  can  be  taken  in  a 
greater  sum  than  40'.  This  statute  (without  any  such  intention  in  the 
makers)  had  like  to  have  ousted  the  King's  Bench  of  all  its  jurisdiction 
over  civil  injuries  without  force;  for,  as  the  bill  of  Middlesex  was  framed 
only  for  actions  of  trespass,  a  defendant  could  not  be  arrested  and  held 
to  bail  thereupon  for  breaches  of  civil  contracts.  [288]  But  to  remedy 
this  inconvenience  the  officers  of  the  King's  Bench  devised  a  method 
of  adding  what  is  called  a  clause  of  ac  etiam  to  the  usual  complaint  of 
trespaiss,  the  bill  of  Middlesex  commanding  the  defendant  to  be  brought 
in  to  answer  the  plaintiff  of  a  plea  of  trespass  and  also  to  a  bill  of  debt, — 
the  complaint  of  trespass  giving  cognizance  to  the  court,  and  that  of 
debt  authorizing  the  arrest.  The  sum  sworn  to  by  the  plaintiff  is  marked 
upon  the  back  of  the  writ,  and  the  sheriff  or  his  officer,  the  bailiff,  is 
then  obliged  actually  to  arrest  or  take  into  custody  the  body  of  the  de- 
fendant, and  having  so  done  to  return  the  writ  with  a  cepi  corpus  in- 
dorsed thereon. 

An  arrest  must  be  by  corporal  seizing  or  touching  the 
defendant's   body,*'    after   which   the   bailiff   may   justify 

5.  Arrest  for  a  simple  debt  has  been  erty  of  the  defendant  as  security  for 

abolished   by  statute   in  most,   if   not  the  plaintiff's  claim  upon  making  the 

all  the  states;   but  in  many  states  if  requisite  affidavit  and  giving  bond  as 

the  debt  was  contracted  by  fraud  or  required   by   statute.     Proceedings   by 

there  has  been  a  fraudulent  attempt  garnishment  are  also  authorized  prob- 

to  evade  payment,  etc.,  and   in  most  ably  in  all  the  states.     See,  generally, 

cases  of  tort  the  plaintiff  by  making  Drake  on  Attachment;  Waples  on  At- 

a   proper  showing  on   oath   may   pro-  tachment  &  Garnishment;  Bradner  on 

cure   an   order   for   the  arrest   of  the  Attachment,  and  the  local   statutes, 
defendant  on  capias,  under  which  he  6.  Mere  words   will    not   constitute 

will  be  compelled  to  give  special  bail  an  arrest.     A  submission,  however,  to 

or   bail   to   the   action   or  be  confijied  reasonably  apprehended  force  is  sufii- 

in  jail.     In  all  the  states  also,  there  cient   to    constitute   an   unlawful    im- 

will    probably   be    found    statutes   au-  prisonment   though    no   force   is   used 

thorizing  the  attachment  of  the  prop-  or  threatened.    Cooley  on  Torts  (Stu- 


;o 


Of  Process. 


[Book  III. 


breaking  open  the  house  in  which  he  is  to  take  him;  other- 
wise he  has  no  such  power,  but  must  watch  his  opportunity 
to  arrest  him.  For  every  man's  house  is  looked  upon  by 
the  law  to  be  his  castle  of  defence  and  asylum,  wherein  he 
should  suffer  no  violence.^  Peers  of  the  realm,  members  of 
parliament,  and  corporations  are  privileged  from  arrests,^ 
and  of  course  from  outlawries.  [289]  And  against  them  the 
process  to  enforce  an  appearance  must  be  by  summons  and 
distress  infinite,  instead  of  a  capias.  Also  clerks,  attorneys, 
and  all  other  persons  attending  the  courts  of  justice  (for 
attorneys,  being  officers  of  the  court,  are  always  supposed 
to  be  there  attending)  are  not  liable  to  be  arrested  by  the 
ordinary  process  of  the  court,  but  must  be  sued  by  hill 
(called  usually  a  hill  of  privilege)''*  as  being  personally  pres- 


dents'  Ed.),  158  and  note;  Brushaber 
V.  Stegeman,  22  Mich.  266.  So  that  it 
is  not  absolutely  necessary  that  there 
be  a  corporal  seizing  or  touching  as 
stated  in  the  text;  for  if  a  bailiff 
come  into  a  room  and  tell  the  defend- 
ant he  arrests  him,  and  lock  the  door, 
it  is  sufficient.  C.  T.  Hardw.  301;  2 
New  Rep.  211;  Bull.  N.  P.  82.  See 
also  authorities  cited  above. 

7.  It  is  the  defendant's  own  dwell- 
ing which  by  law  is  said  to  be  his 
castle;  for  if  he  be  in  the  house  of 
another,  the  bailiff  or  sheriff  may 
break  and  enter  it  to  effect  his  pur- 
pose, but  he  ouglit  to  be  very  certain 
that  the  defendant  be,  at  the  time  of 
siicl)  forcible  entry,  in  the  house.  See 
Johnson  v.  Leigh,  6  Taunt.  246.  A 
bailiff  before  he  has  made  the  arrest 
cannot  break  open  an  outer  door  of 
a  house;  but  if  he  enter  the  outer 
door  peaceably,  he  may  then  break 
open  the  inner  door,  though  it  be  the 
apartment  of  a  lodger,  if  the  owner 
himself  occupies  part  of  the  house. 
Cowp.  1 ;  2  Moore,  207 ;  8  Taunt.  250, 
S.  C.  But  if  the  whole  house  be  let 
in  lodgings,  as   each   lodging  is  then 


considered  a  dwelling-house,  in  which 
burglary  may  be  stated  to  have  been 
committed,  it  has  been  supposed  that 
the  door  of  each  apartment  would  be 
considered  an  outer  door,  which  could 
not  be  legally  broken  open  to  execute 
an  arrest.  Cowp.  2.  But  to  justify 
breaking  open  an  inner  door  belonging 
to  a  lodger,  admittance  must  be  first 
demanded,  unless  defendant  is  in  the 
room.  3  B.  &  P.  223;  4  Taunt.  619. 
And  the  breaking  upon  an  inner  door 
of  a  stranger  cannot  be  justified  on 
a  suspicion  that  defendant  is  in  the 
room.     5  Taunt.  765,  6  ed.  246. 

8.  Members  of  parliament,  members 
of  Congress  and  the  various  state  leg- 
islative bodies  while  in  attendance 
thereon,  ambassadors  and  their  house- 
holds are  privileged  from  civil  arrest, 
the  extent  of  the  privilege  not  always 
being  the  same.  For  details,  see 
Cooley  Const.  Lim.  (7th  Ed.),  192 
and  notes,  ante,  Book  1,  p.  *46  and 
note. 

9.  Not  applicable  to  this  country. 
When  suable  at  all  the  same  process 
is  used  as  in  other  cases. 


Chap.  XIX.]  Of  Process.  551 

fent  in  court.  Clergymen  performing  divine  service,  and 
not  merely  staying  in  the  churcli  with  a  fraudulent  design, 
are  for  the  time  privileged  from  arrests,  by  stat.  50  Edw. 
III.  c.  5,  and  1  Ric.  II.  c.  16,  as  likewise  members  of  Con- 
vocation^ actually  attending  thereon,  by  statute  8  Hen.  "VT. 
c.  1  [not  applicable  to  this  country].  Suitors,  witnesses, 
and  other  persons  necessarily  attending  any  courts  of 
record  upon  business  are  not  to  be  arrested  during  their 
actual  attendance,  which  includes  their  necessary  coming 
and  returning.  And  no  arrest  can  be  made  in  the  king's 
presence,  nor  within  the  verge  of  his  royal  palace,  nor  in 
any  place  where  the  king's  justices  are  actually  sitting. 
And,  lastly,  by  statute  29  Car.  II.  c.  7,  no  arrest  can  be  made, 
nor  process  served  upon  a  Sunday,  except  for  treason, 
felony,  or  breach  of  the  peace.^  [290] 

When  the  defendant  is  regularly  arrested,  he  must  either 
go  to  prison,  for  safe  custody,  or  put  in  special  bail  to  the 
sheriff.  The  method  of  putting  in  bail  to  the  sheriff  is  by 
entering  into  a  bond  or  obligation,  with  one  or  more  sure- 
ties, not  fictitious  persons,  as  in  the  former  case  of  common 
bail,  but  real,  substantial,  responsible  bondsmen,  to  insure 
the  defendant's  appearance  at  the  return  of  the  writ;  which 
obligation  is  called  the  hail-bond.^  The  sheriff,  if  he  pleases, 
may  let  the  defendant  go  without  any  sureties,  but  that  is 
at  his  own  peril;  for  after  once  taking  him  the  sheriff  is 
bound  to  keep  him  safely  so  as  to  be  forthcoming  in  court, 
otherwise  an  action  lies  against  him  for  an  escape.  But 
on  the  other  hand  he  is  obliged,  by  statute  23  Hen.  VI.  c.  10, 
to  take  (if  it  be  tendered)  a  sufficient  bail-bond;  and  by 
statute  12  Geo.  I.  c.  29,  the  sheriff  shall  take  bail  for  no 
other  sum  than  such  as  is  sworn  to  by  the  plaintiff  and 
endorsed  on  the  back  of  the  writ. 

Upon  the  return  of  the  writ,  or  within  four  days  after, 
the  defendant  must  appear  according  to  the  exigency  of 
the  writ.  This  appearance  is  effected  by  putting  in  and 
justifying  bail  to  the  action,^  which  is  commonly  called 

1.  The  American  law  is,  in  most  re-  2.  As  to  the  manner  of  putting  in 

spects,  similar;  but  in  every  case  the  and  perfecting  special  bail  and  bail 
local   statutes   must   be   consulted.  to  the  action,  consult  the  local  stat- 

utes and  books  on  Practice. 


oo2  Of  Process.  [Book  IIT. 

putting  in  bail  above.  If  this  be  not  done,  and  the  bail  that 
were  taken  by  the  sheriff  below  are  responsible  persons,  the 
plaintiff  may  take  an  assignment  from  the  sheriff  of  the 
bail-bond  (under  the  statute  4  &  5  Anne,  c.  16),  and  bring 
an  action  thereupon  against  the  sheriff* 's  bail.  [291  ]  But  if 
the  bail  so  accepted  by  the  sheriff  be  insolvent  persons,  the 
plaintiff  may  proceed  against  the  sheriff  himself  by  calling 
upon  him,  first,  to  return  the  writ  (if  not  already  done),  and 
afterwards  to  bring  in  the  body  of  the  defendant.  And  if 
the  sheriff  does  not  then  cause  sufficient  bail  to  be  put  in 
and  perfected  above,  he  will  himself  be  responsible  to  the 
plaintiff.^ 

The  bail  above,  or  bail  to  the  action,  must  be  put  in  either 
in  open  court  or  before  one  of  the  judges  thereof,  or  else  in 
the  country  before  a  commissioner  appointed  for  that  pur- 
pose by  virtue  of  the  statute  4  W.  &  M.  c.  4,  which  must  be 
transmitted  to  the  court.  These  bail,  who  must  at  least  be 
two  in  number,  must  enter  into  a  recognizance  in  court  or 
before  the  judge  or  commissioner,  in  a  sum  equal  (or  in 
some  cases  double)  to  that  which  the  plaintiff  hath  sworn 
to,  whereby  they  do  jointly  and  severally  undertake,  that 
if  the  defendant  be  condemned  in  the  action  he  shall  pay 
the  costs  and  condemnation,  or  render  himself  a  prisoner,, 
or  that  they  will  pay  it  for  him,  which  recognizance  is  trans- 
mitted to  the  court  in  a  slip  of  parchment  entitled  a  bail 
piece.  And,  if  excepted  to,  the  bail  must  be  perfected,  that 
is,  they  must  justify  themselves  in  court,  or  before  the  com- 
missioner in  the  country,  by  swearing  themselves  house- 
keepers, and  each  of  them  to  be  worth ,  the  full  sum  for 
which  they  are  bail,  after  payment  of  all  their  debts."* 
Special  bail  may  be  discharged  by  surrendering  the  defend- 
ant into  custody  w^ithin  the  time  allowed  by  law,  for  which 
purpose  they  are  at  all  times  entitled  to  warrant  to  appre- 
hend him.  [292] 

Spefcial  bail  is  required  (as  of  course)  only  upon  actions 
of  debt,  or  actions  on  the  case  in  trover  or  for  money  due, 

3.  Similar   rules   will    be   found    to  4.  See  local  statutes, 

exist  in  some  of  the  states.     Consult 
the  local  books  on  Practice, 


Chap.  XIX.]  Of  Process.  553 

where  the  plaintiff  can  swear  that  the  cause  of  action 
amounts  to  ten  pounds;  but  in  actions  where  the  damages 
are  precarious,  being  to  be  assesseii  ad  libitum^  by  a  jury, 
as  in  actions  for  words,  ejectment,  or  trespass,  it  is  very 
seldom  possible  for  a  plaintiff  to  swear  to  the  amount  of 
his  cause  of  action,  and  therefore  no  special  bail  is  taken 
thereon,  unless  by  a  judge's  order  or  the  particular  direc- 
tions of  the  court,  in  some  peculiar  species  of  injuries,  as 
in  cases  of  mayhem  or  atrocious  battery,  or  upon  such 
special  circumstances  as  make  it  absolutely  necessary  that 
the  defendant  should  be  kept  within  the  reach  of  justice. 
Also  in  actions  against  heirs,  executors,  and  administrators, 
for  debts  of  the  deceased,  special  bail  is  not  demandable; 
for  the  action  is  not  so  properly  against  them  in  person  as 
against  the  effects  of  the  deceased  in  their  possession.  But 
special  bail  is  required  even  of  them  in  actions  for  a  devas- 
tavit, or  wasting  the  goods  of  the  deceased,  that  wrong  being 
of  their  own  committing. 

5.  At  pleasure. 


554 


Of  Pleading. 


[Book  III. 


CHAPTER  XX. 


OF  PLEADING.' 


Pleadings  are  the  mutual  altercations  between  the  plain- 
tiff and  defendant,  which  at  present  are  set  down  and  de- 
livered into  the  proper  office  in  writing,  though  formerly 
they  were  usually  put  in  by  their  counsel  ore  tenus  or  viva 


1.  After  an  experience  of  many 
years  as  a  teacher  of  common  law 
pleading  and  practice,  it  is  our  de- 
liberate judgment  that  a  thorough 
knowledge  of  the  elements  of  common 
law  pleading  and  practice  is  the  best 
preparation  for  the  practice  of  the  law 
in  any  jurisdiction  whether  it  has  the 
common  law  or  so-called  code  proce- 
dure and*  that  one  having  such  knowl- 
edge will  experience  no  difficulty  in 
adopting  any  other  system."  No  at- 
tempt will  therefore  be  made  to  give 
the  details  of  any  other  system  than 
that  of  the  common  law.  There  are 
several  works  on  elementary  common 
law  pleading,  each  so  excellent,  that 
to  us  the  one  last  read  (and  we  have 
read  them  often)  seems  the  best.  Ste- 
phens' Pleading  and  Gould's  Pleading 
are  most  excellent  works;  and  an  old 
edition  will  do  as  well  as  the  most 
recent,  if  not  better;  for  with  the  most 
recent  editions  of  these  works  it  is 
not  always  easy  without  consulting 
the  reports  to  tell  what  cases  are 
based  upon  the  common  law  and  what 
upon  statute.  "  Chitty's  Pleading, 
which  [as  John  G.  Saxe,  in  describ- 
ing his  library  once  said],  draws  the 
student's  tear,"  is  a  work  of  monu- 
mental learning.  We  remember  well 
when  a  student  listening  to  lectures 
by  the  Hon.  Thomas  M.  Cooley  of 
revered  memory,  hearing  him  advise 
his  listeners  to  study  the  precedents 


in  the  2d  and  3d  vols,  of  Chitty.  The 
man  who  knows  all  of  Blackstone's 
Commentaries,  Chitty  on  Pleading, 
and  is  well  versed  in  evidence,  is 
better  qualified  to  practice  law  than 
are  99%  of  the  bar.  An  old  edition 
of  Chitty  is  preferable. 

When  we  come  to  enumerate  books 
on  practice  which  should  be  constantly 
referred  to  and  which  will  be  found 
necessary  in  order  to  understand  ex- 
traordinary process  such  as  man- 
damus, prohibition,  quo  warranto, 
scire  facias,  certiorari,  etc.,  we  find 
also  a  wealth  of  literature.  Tidd's 
and  Chitty's  General  Practice ;  Went- 
worth's  Pleading  (10  vols.)  ;  Graham 
and  Burrill's  Practice;  the  last  two 
under  the  old  New  York  common  law 
system,  are  very  valuable.  Of  course, 
local  works  should  be  consulted  and 
studied,  but  our  experience  is  that 
some  of  them  are  most  noted  for  what 
they  do  not  contain.  When  we  reach 
the  subject  of  equity  pleading  and 
practice  we  shall  take  occasion  to  no- 
tice some  of  the  older  works  on  those 
subjects. 

The  literature  on  code  pleading, 
considering  its  alleged  simplicity,  is 
rather  formidable.  See  Bonder's  Law 
Catalogue  (1914),  pp.  16,  82.  For 
the  student  desiring  a  good  outline  of 
the  subject,  Bryant's  Code  Pleading 
(2d  Ed.),  1899,  is  well  adapted. 


Chap.  XX.] 


Of  Pleading. 


55i 


voce,  in  court,  and  then  minuted  down  by  the  chief  clerks  or 
prothonotaries.  [293]  [Pleading  is  the  statement  in  a 
logical  and  legal  form  of  the  facts  which  constitute  the 
plaintiff's  cause  of  action  or  the  defendant's  ground  of 
defence;  it  is  the  formal  mode  of  alleging  on  the  record  that 
which  would  be  the  support  or  the  defence  of  the  party  in 
evidence.]^  ■ 


2.  Per  Buller,  J.,  3  T.  R.  159; 
Dougl.  278.  "It  is  (as  also  observed 
by  the  same  learned  judge,  in  Dougl. 
Rep.  159),  one  of  the  first  principles 
of  pleading,  that  there  is  only  occa- 
sion to  state  facts,  which  must  be 
done  for  the  purpose  of  informing  the 
court,  whose  duty  it  is  to  declare  the 
law  arising  upon  those  facts,  and  of 
apprizing  the  opposite  party  of  what 
is  meant  to  be  proved,  in  order  to  give 
him  an  opportunity  to  answer  or  tra- 
verse it."  And  see  the  observations 
of  Lord  C.  J.  De  Grey,  Cowp.  682. 
From  this  it  will  be  seen,  that  the 
science  of  special  pleading  may  be 
considered  under  two  heads:  1st. 
The  facts  necessary  to  be  stated.  2d. 
The  mode  of  stating  them.  In  these 
considerations,  the  reader  must  be 
contented  with  a  general  outline  of  the 
law  upon  the  subject. 

1st.  The  Facts  Necessary  to  Be 
Stated. —  No  more  should  be  stated 
than  is  essential  to  constitute  the 
cause  of  complaint,  or  the  ground  of 
defence.  Cowp.  683;  1  Lord  Ray.  171. 
And  facts  only  should  be  stated,  and 
not  arguments  or  inferences,  or  mat- 
ter of  law.  Cowp.  684;  5  East,  275. 
The  party  can  only  succeed  on  the 
facts,  as  they  are  alleged  and  proved. 

There  are  various  facts  which  need 
not  be  stated,  though  it  may  be  es- 
sential that  they  should  be  established 
in  evidence,  to  entitle  the  party  plead- 
ing to  succeed. 

Thus  there  are  facts  of  which  the 


court  will,  from  the  nature  of  its 
office,  take  notice  without  their  being 
stated;  as  when  the  king  came  to  the 
throne  (2  Lord  Raym.  794),  his  priv- 
ileges (id.  980),  proclamations,  etc. 
(1  Lord  Raym.  282;  2  Camp.  44;  4 
M.  &  S.  532),  but  private  orders  of 
council,  pardons  and  declarations  of 
war,  etc.,  must  be  stated.  2  Litt. 
Bac.  Reg.  303;  3  M.  &  S.  67;  11  Ves. 
292:  3  Camp.  61.  67.  The  time  and 
place  of  holding  parliaments,  and 
their  course  of  proceedings,  need  not 
be  stated  (1  Lord  Raym.  343,  210; 
1  Saund.  131)  ;  but  their  journals 
must.  Lord  Ray.  15;  Cowp.  17. 
Public  statutes,  and  the  facts  they 
ascertain  (1  T.  R.  145;  Com.  Dig. 
Pleader,  c.  76)  ;  the  ecclesiastical, 
civil  and  marine  laws  (Bro.  (,)iiare 
Impedit,  pi.  12;  Lord  Ray.  338)  need 
not  be  stated;  but  private  acts  (Lord 
Ray.  381;  2  Dougl.  97)  and  foreign 
(2  Cart.  273:  Cowp.  174)  and  plan- 
tation and  forest  (2  Leon.  209)  laws, 
must.  Common  law  rights,  duties  and 
general  customs,  customs  of  gavelkind 
and  borough  English  (Dougl.  150; 
Lord  Ray.  175,  1542;  Carth.  83;  Co. 
Litt.  175;  Lord  Raym.  1025;  Cro. 
Car.  561),  need  not  be  stated;  but 
particular  local  customs  must.  1  Rol. 
Rep.  509;  9  East,  185;  Stra.  187, 
1187;  Dougl.  387.  The  almanack  is 
part  of  the  law  of  the  land,  and  the 
courts  take  notice  thereof,  and  the 
days  of  the  week,  and  of  the  moveable 
feasts  and  terms.     Dougl.  380;  Salk. 


55G 


Of  Pleading. 


[Book  III. 


The  first  of  these  is  the  declaration,  narratio,  or  count, 
anciently  called  the  'tale,  in  which  the  plaintiff  sets  forth 
his  cause  of  complaint  at  length,  being  indeed  only  an 
amplification  or  exposition  of  the  original  writ  upon  which 
his  action  is  founded,  with  the  additional  circumstances  of 
time  and  place  when  and  where  the  injury  w^as  committed. 

In  local  actions,  where  possession  of  land  is  to  be  re- 


269;  1  Roll.  Ab.  534,  c.  pi.  4;  6  Mod. 
81;  Salk.  626.  So  the  division  of 
England  into  counties  will  be  noticed 
without  pleading  (2  Inst.  557; 
Marsh.  124)  but  not  so  of  a  less  divi- 
sion (id.),  nor  of  Ireland.  1  Chit. 
Rep.  28,  32;  3  B.  &  A.  301;  S.  C, 
2  D.  &  R.  15;  1  B.  &  C.  16,  S.  C. 
The  court  will  take  judicial  notice  of 
the  incorporated  towns,  of  the  extent 
of  ports,  and  the  river  Thames.  Stra. 
469;  1  H.  Bla.  356.  So  it  will  take 
notice  of  the  meaning  of  English 
words  and  terms  of  art,  according  to 
their  ordinary  acceptation  (1  Rol. 
Ab.  86,  525)  ;  also  of  the  names  and 
quantities  of  legal  weights  and  meas- 
ures (1  Rol.  Ab.  525);  also  courts 
will  take  notice  of  its  own  course  of 
proceedings  (1  T.  R.  118;  2  Lev.  176) 
and  of  those  of  the  superior  courts 
(2  Co.  Rep.  18;  Cro.  Jac.  67),  the 
privileges  they  confer  on  their  officers 
(Lord  Ray.  869,  898),  of  courts  of 
general  jurisdiction,  and  the  course  of 
proceedings  therein;  as  the  court  of 
exchequer  in  Wales,  and  the  counties 
palatine  (1  Lord  Rayra.  154;  1  Saund. 
73 )  ;  but  the  courts  are  not  bound, 
ex  officio,  to  take  notice  who  were,  or 
are  the  judges  of  another  court  at 
Westminster  (2  Andr.  74;  Stra. 
1226),  nor  are  the  superior  courts,  ex 
officio,  bound  to  notice  the  customs, 
laws  or  proceedings  of  inferior  courts 
of  limited  jurisdiction  (1  Roll.  Rep. 
105;  Lord  Raym.  1334;  Cro.  FA'iz. 
502),  unless  indeed  in  courts  of  error. 
Cro.  Car.  179. 


Where  tiie  law  presumes  a  fact,  as 
that  a  poison  is  innocent  of  a  fraud 
or  crime,  or  that  a  transaction  is  il- 
legal, it  need  not  be  stated.  4  M.  & 
S.    105;    2    Wils.    147;    Co.   Lit.    78b; 

I  B.  &  A.  463. 

Matter  which  should  come  more 
properly  from  the  other  side,  as  it  is 
presumed  to  lie  more  in  the  knowledge 
of  the  other  party,  or  is  an  answer  to 
the  charge  of  tlie  party  pleading,  need 
not  be  stated,  unless  in  pleas  of  estop- 
pel and  alien  enemy;  but  this  rule 
must  be  acted  upon  with  caution;  for 
if  the  fact  in  anj'  way  constitutes  a 
condition  precedent,  to  enable  the 
partj-  lo  avail  himself  of  the  charge 
stated  in  his  pleading,  such  fact  should 
be  stated.  Com.  Dig.  Pleader,  c.  81;  1 
Leon.  18;   2  Saund.  62b;  4  Camp.  20; 

II  East,   638,   and   see  cases   1   Chit, 
on  PI.  206;   Stephen,  354. 

Though  the  facts  of  a  case  must  be 
stated  in  pleading,  it  is  not  necessary 
to  state  that  which  is  a  mere  matter 
of  evidence  of  such  fact.  9  Rep.  9b; 
9  Edw.  III.  5b,  6a;  Wilies,  130; 
Raym.  8. 

And  though  the  general  rule  is.  that 
facts  only  are  to  be  stated,  yet  there 
are  some  instances  in  which  the  state- 
ment in  the  pleading  is  proper,  though 
it  does  not  accord  with  the  real  facts, 
the  law  allowing  a  fiction,  as  in  eject- 
ment, trover,  detinue,  etc.  2  Burr. 
667;   1  N.  R.  140. 

No  fact  that  is  not  essential  to  sub- 
stantiate the  pleading  should  be 
stated.     The  statement  of  immaterial 


Chap.  XX.] 


Of  Pleading. 


557 


covered  or  damages  for  an  actual  trespass^or  for  waste,  &c., 
affecting  land,  the  plaintiff  must  lay  his  declaration  or 
declare  his  injury  to  have  happened  in  the  very  county  and 
place  that  it  really  did  happen  in;  but  in  transitory  actions, 
for  injuries  that  might  have  happened  anywhere,  as  debt, 
detinue,  slander,  and  the  like,  the  plaintiff  may  declare  in 


or  irrelevant  matter  is  not  only  cen- 
surable on  the  ground  of  expense,  but 
frequently  aflfords  an  advantage  to  the 
opposite  party,  either  as  the  ground 
of  a  variance,  or  as  rendering  it  en- 
cumbent on  the  party  pleading  to  ad- 
duce more  evidence  than  would  other- 
Avise  have  been  nt?cessary;  though,  in- 
deed, if  the  matter  unnecessarily 
stated  be  wholly  foreign  and  imperti- 
nent to  the  cause,  so  that  no  allega- 
tion whatever  on  the  subject  was  nec- 
essary, it  will  be  rejected  as  surplus- 
age, it  being  a  maxim  that  utile  per 
inutile  non  vitiatur.  See  cases,  etc., 
in  Chit,  on  PI.  208,  9,  10.  Besides 
this,  the  pleading  must  not  state  two 
6r  more  facts,  either  of  which  would 
of  itself,  independently  of  the  other, 
constitute  a  sufficient  ground  of  ac- 
tion or  defence.  Co.  Lit.  304a;  Com. 
Dig.  Pleader,  C.  33,  E.  2;  1  Chit,  on 
PI.  208. 

2dly.  The  Mode  of  Stativg  Facts. 
—The  facts  should  be  stated  logi- 
cally, in  their  natural  order;  as,  on 
the  part  of  the  plaintiff,  his  right, 
the  injury  and  consequent  damage; 
and  these,  with  certainty,  precision, 
and  brevity.  The  facts,  as  stated, 
must  not  be  insensible  or  repugnant, 
nor  ambiguous  or  doubtful  in  mean- 
ing, nor  argumentative,  nor  in  the 
alternative,  nor  by  way  of  recital,  but 
positive,  and  according  to  their  legal 
effect  and  operation.  Dougl.  866,  7; 
1  Chit,  on  PI.  211;  Stephen,  378  to 
405, 

Certainty  signifies  a  cJear  and  dis- 


tinct statement,  so  that  it  may  be 
understood  by  the  opposite  party,  by 
the  jury,  who  are  to  ascertain  the 
truth  of  such  statement,  and  by  the 
court,  who  are  to  give  judgment. 
Cowp.  682;  Com.  Dig.  Pleader,  C,  17. 
Less  certainty  is  requisite,  when  the 
law  presumes  that  the  knowledge  of 
the  facts  is  peculiarly  in  the  opposite 
party;  and  so  when  it  is  to  be  pre- 
sumed that  the  partj'  pleading  is  not 
acquainted  with  minute  circumstances. 
13  East,  112;  Com.  Dig.  Pleader,  C. 
26;  8  East,  85.  General  statements 
of  facts  admitting  of  almost  any 
proof,  are  objectionable  (1  M.  &  S. 
441;  *3  M.  &  S.  114);  but  where  a 
subject  comprehends  multiplicity  of 
matter,  there,  in  order  to  avoid  pro- 
lixity, general  pleading  is  allowed. 
2  Saund.  411,  n.  4;  8  T.  R.  462. 

In  the  construction  of  facts  stated 
in  pleading,  it  is  a  general  rule,  that 
every  thing  shall  be  taken  most 
strongly  against  the  party  pleading 
(1  Saund.  259,  n.  8);  or  rather,  if 
the  meaning  of  the  words  be  equivo- 
cal, they  shall  be  construed  most 
strongly  against  the  party  pleading 
them  (2  H.  Bla.  530)  ;  for  it  is  to  be 
intended,  that  every  person  states  his 
case  as  favourably  to  himself  as  pos- 
sible (Co.  Litt.  30,  36)  ;  but  the  lan- 
guage is  to  have  a  reasonable  intend- 
ment and  construction  (Com.  Dig. 
Pleader,  C.  25)  ;  and  if  the  sense  be 
clear,  mere  exceptions  ought  not  to 
be  regarded  (5  East,  529)  ;  and  where 
an  expression  is  capahle  of  different 


558 


Of  Pleading. 


[Book  III. 


what  county  he  pleases,^  and  then  the  trial  must  be  had 
in  that  county  in  which  the  declaration  is  laid.  [294] 

Though  if  the  defendant  will  make  affidavit  that  the  cause  of  action, 
if  any,  arose  not  in  that  but  in  another  county,  the  court  will  direct  a 
change  of  the  venue  or  visne  (that  is,  the  vicinia  or  neighborhood  in 
which  the  injury  is  declared  to  be  done),  and  will  oblige  the  plaintiff 
to  declare  in  the  other  county,  unless  he  will  undertake  to  give  material 
evidence  in  the  first.'* 


It  is  generally  usual  in  actions  upon  the  case  to  set  forth 
several  cases  by  different  counts  in  the  same  declaration, 
so  that  if  the  plaintiff  fails  in  the  proof  of  one,  he  may 
succeed  in  another.'^  [295]     As  in  an  action  on  the  case  upon 


meanings,  that  shall  be  taken  which 
will  support  the  averment,  and  not 
the  other  which  would  defeat  it.  4 
Taunt.  492;  5  East,  257.  After  ver- 
dict, an  expression  should  be  con- 
strued in  such  sense  as  would  sustain 
the  verdict.     1  B.  &  C.  397. 

3.  This  distinction  of  actions  as 
local  and  transitory  is  still  import- 
ant. The  actions  of  ejectment,  tres- 
pass quare  clausum  fregit,  etc.,  are 
local,  as  stated  in  the  text.  See 
the  leading  case  of  Mostyn  v.  Fabri- 
gas,  Cowp.  161;  1  Smith's  T^ead.  Cas. 
*765  and  notes. 

4.  Change  of  venue  in  this  country 
is  regulated  by  statute.  See  local 
works  on   Practice. 

5.  The  variations  should  be  sub- 
stantial; for  if  the  different  counts 
be  so  similar  that  the  same  evidence 
would  support  each  of  them,  and  be 
of  any  considerable  length,  and  vexa- 
tiously  inserted,  the  coiirt  would,  on 
application,  refer  it  to  the  master  for 
examination,  and  to  strike  out  the 
redundant  counts;  and  in  gross  cases 
direct  the  costs  to  be  paid  by  the  at- 
torney. 1  N.  R.  289;  Rep.  T.  Hardw. 
129.  And  as  to  striking  out  superflu- 
ous counts,  see  Tidd    (8th   Ed.),  667, 


648;  in  2  Bing.  412,  nine  counts  were 
allowed  in  an  action  for  slander, 
though  the  words  used  were  very  few. 
See  1  Chit,  on  PI.  350,  1,  2,  as  to  the 
insertion  of  several  counts.  There 
must  be  no  misjoinder  of  different 
counts;  and,  in  order  to  prevent  the 
confusion  which  might  ensue,  if  dif- 
ferent forms  of  action,  requiring  dif- 
ferent pleas  and  different  judgments, 
were  allowed  to  be  found  in  one  ac- 
tion, it  is  a  general  rule,  that  actions 
in  form  ex  contractu  cannot  be- joined 
with  those  in  form  ex  delicto.  Thus, 
assumpsit  and  debt  (2  Smith,  618,  3 
ib.  114),  or  assumpsit  and  an  action 
on  the  case,  as  for  a  tort,  cannot  be 
joined  (1  T-  R.  276,  277;  1  Vent.  366; 
Carth.  189 ) ,'  nor  assumpsit  with  tro- 
ver (2  Lev.  101;  3  Lev.  99;  1  Salk. 
10;  3  Wils.  354;  6  East.  335;  2  Chitty 
R.  343),  nor'  trover  with  detinue. 
Willes.  118;  1  Chitty  on  Plead.  182. 
Debt  and  detinue  may,  however,  be 
joined,  although  the  judgments  be 
different.  2  Saund.  117.  And  see 
further  as  to  what  is  a  misjoinder, 
1  Chit,  on  PI.  199.  Unless  the  sub- 
sequent count  expressly  refers  to  the 
preceding,  no  defect  therein  will  be 
aided  by  such  preceding  count.     Bac. 


Chap.  XX.]  Of  Pleading.  559 

an  assumpsit  for  goods  sold  and  delivered,  the  plaintiff 
usually  counts  or  declares,  first,  upon  a  settled  and  agreed 
price  between  him  and  the  defendant,  as  that  they  bargained 
for  twenty  pounds;  and  lest  he  should  fail  in  the  proof  of 
this,  he  counts  likewise  upon  a  quantum  valebant,  that  the  de- 
fendant bought  other  goods,  and  agreed  to  pay  him  so  much 
as  they  were  reasonably  worth,  and  then  avers  that  they 
were  worth  other  twenty  pounds ;  and  so  on  in  three  or  four 
different  shapes;  and  at  last  concludes  with  declaring  that 
the  defendant  had  refused  to  fulfil  any  of  these  agreements, 
whereby  he  is  endamaged  to  such  a  value.  And  if  he 
proves  the  case  laid  in  any  one  of  his  counts,  though  he 
fails  in  the  rest,  he  shall  recover  proportionable  damages.® 
This  declaration  always  concludes  with  these  words,  * '  and 
thereupon  he  brings  suit, ' '  &c.,  "  inde  producit  sectqm/'  &c. 

By  which  words,  suit  or  secta  (a  sequendo),  were  anciently  understood 
the  witnesses  or  followers  of  the  plaintiff.  For  in  former  times  the  law 
would  not  put  the  defendant  to  the  trouble  of  answering  the  charge  till 
the  plaintiff  had  made  out  at  least  a  probable  case.  But  the  actual  pro- 
duction of  the  suit,  the  secta,  or  followers,  is  not  antiquated,  and  hath  been 
totally  disused,  at  least  ever  since  the  reign  of  Edward  III.,  though  the 
form  of  it  still  continues. 

At  the  end  of  the  declaration  are  added  also  the  plaintiff's  common 
pledges  of  prosecution  [obsolete],  John  Doe  and  Richard  Roe,  which  are 
now  mere  names  of  form;  though  formerly  they  were  of  use  to  answer 
to  the  king  for  the  amercement  of  the  plaintiff  in  case  he  were  nonsuited, 
barred  of  his  action,  or  had  a  verdict  or  judgment  against  him. 

For  if  the  plaintiff  neglects  to  deliver  a  declaration  for 
two  terms  after  the  defendant  appears,  or  is  guilty  of  other 
delays  or  defaults  against  the  rules  of  law  in  any  subsequent 
stage  of  action,  he  is  adjudged  not  to  follow  or  pursue  his 
remedy  as  he  ought  to  do,  and  thereupon  a  nonsuit,  or  non 

Ab.    Pleas    and    Pleader,    16,    1.       In  ante.      They    are    in    every-day    use, 

Illinois  counts  in  case  and  trover  and  as    stated    by    the    author,    only    in 

ill  trover  and  replevin  may  be  joined  an   abbreviated  form,  in  those  states 

in    the   same    declaration.      1    Puter-  retaining  the  common   law   forms   of 

burgli  Com.  Law,  Plead.  &  Prac.  (7th  pleading;   and  are  very  useful  in  pre- 

Ed.),  292.  venting  a  variance  between  the  plead- 

6.  See    common    counts    considered  ings  and  the  evidence. 


560  Of  Pleading.  [Book  III. 

prosequitur  is  entered,  and  he  is  said  to  be  nonpros'd.~  [296] 
And  for  thus  deserting  his  complaint,  after  making  a  false 
claim  or  complaint  {pro  faJso  clamor'e  s»/o),  he  shall  not  only 
pay  costs  to  the  defendant,  but  is  liable  to  be  amerced  to 
the  king.  A  retraxit  differs  from  a  nonsuit  in  that  the  one 
is  negative  and  the  other  positive.  The  nonsuit  is  a  mere 
default  and  neglect  of  the  plaintiff,  and  therefore  he  is 
allowed  to  begin  his  suit  again  upon  payment  of  costs;  but 
a  retraxit  is  an  open  and  voluntary  renunciation  of  his  suit 
in  court,  and  by  this  he  forever  loses  his  action.^  A  discon- 
tinuance is  somewhat  similar  to  a  nonsuit,  for  when  a  plain- 
tiff leaves  a  chasm  in  the  proceedings  of  his  cause,  as  by 
not  continuing  the  process  regularly  from  day  to  day  and 
time  to  time,  as  he  ought  to  do,  the  suit  is  discontinued,  and 
the  defeijdant  is  no  longer  bound  to  attend,  but  the  plaintiff 
must  begin  again  by  suing  out  a  new  original,  usually  pay- 
ing costs  to  his  antagonist. 

When  the  plaintiff  hath  stated  his  case  in  the  declaration, 
it  is  incumbent  on  the  defendant  within  a  reasonable  time  ^ 
to  make  his  defence  and  to  put  in  a  plea,  else  the  plaintiff 
will  at  once  recover  judgment  by  default,  or  nihil  dicit,  of  the 
defendant. 

Defence,  in  its  true  legal  sense,  signifies  not  a  justification,  protection, 
or  guard,  which  is  now  its  popular  signification,  but  merely  an  opposing 
or  denial  (from  the  French  verb  defender)  of  the  truth  or  validity  of  the 
complaint.  It  is  the  contestatio  litis  of  the  civilians;  a  general  asser- 
tion that  the  plaintiff  hath  no  ground  of  action,  which  assertion  is  after- 
wards extended  and  maintained  in  his  plea.  [297]  By  defending  the  force 
and  injury,  the  defendant  waived  all  pleas  of  misnomer;  by  defending 
the  damages,  all  exceptions  to  the  person  of  the  plaintiff;  and  hy  de- 
fending either  one  or  the  other  ivhen  and  where  it  should  behoove  him, 
he  acknowledged  the  jurisdiction  of  the  court.  [298]  But  of  late  years 
these  niceties  have  been  very  deservedly  discountenanced,  though  they 
still  seem  to  be  law  if  insisted  on. 2 

Before  defence  made,  if  at  all,  cognizance  of  the  suit  must  be  claimed 

7.  See  local  works  on  Practice.  1.  Fixed  by  rule  or  statute. 

8.  This  distinction  still  exists  in  2.  At  present  they  are  mere  mat- 
tliis  country.                                                    teis  of  form. 


Chap.  XX.]  Of  Pleading.  561 

or  demanded,  when  any  person  or  body  corporate  hath  the  franchise,  not 
only  of  holding  pleas  within  a  particular  limited  jurisdiction,  but  also 
of  the  cognizance  of  pleas.  Upon  this  claim  of  cognizance,  if  allowed,  all 
proceedings  shall  cease  in  the  superior  court,  and  the  plaintiff  is  left  at 
liberty  to  pursue  his  remedy  in  the  special  jurisdiction.^ 

After  defence  made,  the  defendant  must  put  in  his  plea. 

[299]  But  before  he  defends,  if  the  suit  is  commenced  by 
capias  or  latitat,  without  any  special  original,  he  is  entitled 
to  demand  one  imparlance,  or  licentia  loquendi;  and  may 
before  he  pleads,  have  more  time  granted  by  consent  of  the 
court,  to  see  if  he  can  end  the  matter  amicably  without 
farther  suit,  by  talking  with  the  plaintiff."  There  are  also 
many  other  previous  steps  which  may  be  taken  by  a  defend- 
ant before  he  puts  in  his  plea.  He  may,  in  real  actions, 
demand  a  view^  of  the  thing  in  question,  in  order  to  ascer- 
tain its  identity  and  other  circumstances.  He  may  crave 
oyer  of  the  writ,  or  of  the  bond,  or  other  specialty  upon 
which  the  action  was  brought,  that  is,  to  hear  it  read  to 
him,  the  generality  of  defendants  in  the  times  of  ancient 
simplicity  being  supposed  incapable  to  read  it  themselves; 
w^hereupon  the  whole  is  entered  verbatim  upon  the  record, 
and  the  defendant  may  take  advantage  of  any  condition  or 
other  part  of  it  not  stated  in  the  plaintiff's  declaration.^ 

3.  Not   applicable   to   this   country.  In  Illinois  profert  is  unnecessary; 

4.  Further  time  to  plead  is  now  but  oyer  may  be  had  of  any  instru- 
UEually  obtained  by  special  motion.  ment  in  writing  whether  under  seal 

5.  Now  allowed  in  other  actions  if  or  not  if  the  same  is  not  lost  or  de- 
necessary  in  the  interests  of  justice  stroyed,  in  the  same  manner  as  if 
on  special  motion.  Real  actions  have  profert  had  been  properly  made  ac- 
been  abolished.  cording    to    tlie   common    law.       Rev. 

6.  But  now  a  defendant  is  not  al-  Stat.  111.,  eh.  110,  see.  20:  Puter- 
Ipwed  oyer  of  the  writ.  .  1  B.  &  P.  burgh's  Com.  Law,  Plead.  &  Prac.  ( 7th 
646;  3  B.  &  P.  395:  7  East,  383.  As  Ed.),  491.  Profert  and  oyer  are  also 
to  the  demand  and  giving  of  oyer,  still  in  use  in  Michigan  and  probably 
and  the  manner  of  setting  out  deeds,  in  other  states.  See  Green's  New 
etc.,  therein,  see  1  Saund.  9  (1),  289  Practice,  *1255,  *1276,  *1328,  *1333. 
(2);  2  Saund.  9  (12,  13),  46  (7),  This  practice  does  not  apply  in  chan- 
366  (1),405  (1),410  (2)  ;  Tidd  (8th  eery.  Hamilton  v.  Downer,  152  IlL 
Ed.),  635  to  638.  and  index,  tit.  Oyer;  651. 

1    Chit,   on    PI.    369    to    375;    Gould's 
Plead.,  ch.  8,  sees.  32-64. 

3() 


562  Of  Pleading.  [Book  III. 

When  these  proceedings  are  over,  the  defendant  must 
then  put  in  his  excuse  or  plea.  [301]  Pleas  are  of  two  sorts, 
dilatory  pleas,  and  pleas  to  the  action.  Dilatory  pleas  are 
such  as  tend  merely  to  delay  or  put  off  the  suit,  by  question- 
ing the  propriety  of  the  remedy"  rather  than  by  denying  the 
injury;  pleas  to  the  action  are  such  as  dispute  the  very  cause 
of  suit.  The  former  cannot  be  pleaded  after  a  general  im- 
parlance, which  is  an  acknowledgment  of  the  propriety  of 
the  action.  For  imparlances  are  either  general,  of  which 
we  have  before  spoken  and  which  are  granted  of  course^  or 
special,  with  a  saving  of  all  exceptions  to  the  writ  or  count, 
which  may  be  granted  by  the  prothonotary;  or  they  may  be 
still  more  special,  with  a  saving  of  all  exceptions  whatso- 
ever, which  are  granted  at  the  discretion  of  the  court. 

1.  Dilatory  pleas  are:  1.  To  the  jurisdiction  of  the  court, 
alleging  that  it  ought  not  to  hold  plea  of  this  injury.  2. 
To  the  disability  of  the  plaintiff,  by  reason  whereof  he  is 
incapable  to  commence  or  continue  the  suit;  as  that  he  is  an 
alien  enemy,  outlawed,  excommunicated,  attainted  of  treason 
or  felony,  under  a  praemunwe,  not  in  rerum  natura  (being 
only  a  fictitious  person),  an  infant,  a  feme-covert,  or  a  monk 
professed.  3.  In  afbatement,  which  abatement  is  either  of 
the  writ  or  the  count,  for  some  defect  in  one  of  them,  as  by 
misnaming  the  defendant,  which  is  called  a  misnomer, 
giving  him  a  wrong  addition,  as  esquire  instead  of  knight, 
or  other  want  of  form  in  any  material  respect.  [302]  Or 
it  may  be  that  the  plaintiff  is  dead ;  for  the  death  of  either 
party  is  at  once  an  abatement  of  the  suit."^  And  in  actions 
merely  personal  arising  ex  delicto  for  wrongs  actualy  done 
or  committed  by  the  defendant,  as  trespass,  battery,  and 
slander,  the  rule  is  that  actio  personalis  moritur  cum  per- 
sona, and  it  never  shall  be  revived  either  by  or  against  the 
executors  or  other  representatives.*     For  neither  the  execu- 

7.  See,  generally,  as  to  dilatory  so  that  actions  of  tort  affecting  prop- 
pl'.  as,  Stephens'  Pleading,  sees.  223,  erty  rights  will  survive.  Actions  for 
224;  Gould's  Plead.,  ch.  2,  sees.  32-  torts  to  the  person,  such  as  assault 
36:  id.,  ch.  5.  Some  of  these  dis-  and  battery,  slander,  false  imprisou- 
abilities  are  obsolete  and  have  already  ment,  etc.,  are  still  subject  to  the 
been  considered.  common  law  rule  stated  in  the  text. 

8.  This  rule  has  been  changed,  to  This  subject  has  been  already  conaid- 
•ome  extent,  by  statute  in  many  states  ered  ante. 


Chap.  XX.]  Of  Pleading.  .563 

tors  of  the  plaintiff  have  received,  nor  those  of  the  defend- 
ant have  committed,  in  their  own  personal  capacity,  any 
manner  of  wrong  or  injury.  But  in  actions  arising  ex 
contractu,  by  breach  of  promise  and  the  like,^  where  the 
right  descends  to  the  representatives  of  the  plaintiff,  and 
those  of  the  defendant  have  assets  to  answer  the  demand, 
though  the  suit  shall  abate  by  the  death  of  the  parties,  yet 
they  may  be  revived  against  or  by  the  executors,  being 
indeed  rather  actions  against  the  property  than  the  person, 
in  which  the  executors  have  now  the  same  interest  that 
their  testator  had  before. 

Now  by  statute  4  and  5  Anne,  c.  16,  no  dilatory  plea  is  to 
be  admitted  without  affidavit  made  of  the  truth  thereof,  or 
some  probable  matter  shown  to  the  court  to  induce  them 
to  believe  it  true.  And  with  respect  to  the  pleas  them- 
selves, it  is  a  rule  that  no  exception  shall  be  admitted 
against  a  declaration  or  writ,  unless  the  defendant  will  in 
the  same  plea  give  the  plaintiff  a  better,  that  is,  show  him 
how  it  might  be  amended,  that  there  may  not  be  two  objec- 
tions upon  the  same  account.^ 

All  pleas  to  the  jurisdiction  conclude  to  the  cognizance 
of  the  court,  praying  ''  judgment,  whether  the  court  will 
have  further  cognizance  of  the  suit;  "pleas  to  the  disability 
conclude  to  the  person,  by  praying  "  judgment,  if  the  said 
A  the  plaintiff  ought  to  be  answered,"  and  ple.as  in  abate- 
ment (when  the  suit  is  by  original)  conclude  to  the  writ  or 
declaration,  by  praying  * '  judgment  of  the  writ  or  declara- 
tion and  that  the  same  may  be  quashed,"  cassetur^  made  void 
or  abated.  [303] 

When  these  dilatory  pleas  are  allowed,  the  cause  is  either 
dismissed  from  that  jurisdiction,  or  the  plaintiff  is  stayed 
till  his  disability  be  removed,  or  he  is  obliged  to  sue  out  a 
new  writ,  by  leave  obtained  from  the  court,  or  to  amend 
and  new-frame  his  declaration.  But  when,  on  the  other 
hand,  they  are  overruled  as  frivolous,  the  defendant  has 

9.  But  not  for  breach  of  promise  of  1.  Andrews    Stephens'    Plead.,    sec. 

marriage.    Wade  v.  Kalbfleisch,  58  N.      223. 
Y.  283. 


5C4  Of  Pleading.  [Book  III. 

jiidgniont  of  respondeat  ouster,  or  to  answer  over  in  some 
better  manner.^     It  is  then  incumbent  on  him  to  plead. 

2.  A  plea  to  the  action,  that  is,  to  answer  to  the  merits  of 
the  complaint.     This  is  done  by  confessing  or  denying  it. 

A  confession  of  the  whole  complaint  is  not  very  usual,  for 
then  the  defendant  would  probably  end  the  matter  sooner, 
or  not  plead  at  all,  but  suffer  judgment  to  go  by  default. 
Yet  sometimes,  after  tender  and  refusal  of  a  debt,  if  the 
creditor  harasses  his  debtor  with  an  action,  it  then  becomes 
necessary  for  the  defendant  to  acknowledge  the  debt  and 
plead  the  tender,  adding  that  he  has  always  been  ready, 
tont  temps  prist,  and  still  is  ready,  nncore  prist,  to  discharge 
it;''  for  a  tender  by  the  debtor  and  refusal  by  the  creditor 
will  in  all  cases  discharge  the  costs,  but  not  the  debt  itself, 
though  in  some  particular  cases  the  creditor  will  totally 
lose  his  money.  But  frequently  the  defendant  confesses 
one  part  of  the  complaint  (by  a  cognovit  actionem  in  respect 
thereof),  and  traverses  or  denies  the  rest,  in  order  to  avoid 
the  expense  of  carrying  that  part  to  a  formal  trial  which  he 
has  no  ground  to  litigate.  [304]  A  species  of  this  sort  of 
confession  is  the  payment  of  money  into  court,  which  is  for 
the  most  part  necessary  upon  pleading  a  tender,  and  is 
itself  a  kind  of  tender  to  the  plaintiff,  by  paying  into  the 
hands  of  the  proper  officer  of  the  court  as  much  as  the  de- 
fendant acknowledges  to  be  due,  together  with  the  costs 
hitherto  incurred,  in  order  to  prevent  the  expense  of  any 
further  proceedings.  This  may  be  done  upon  what  is  called 
a  motion,  which  is  an  occasional  application  to  the  court  by 
the  parties  or  their  counsel,  in  order  to  obtain  some  rule  or 
order  of  court,  which  becomes  necessary  in  the  progress  of 
a  cause,  and  it  is  usually  grounded  upon  an  affidavit  (the 
perfect  tense  of  the  verb  affido),  being  a  voluntary  oath 
before  some  judge  or  officer  of  the  court,  to  evince  the  truth 
of  certain  facts  upon  which  the  motion  is  grounded;  though 
no  such  affidavit  is  necessary  for  payment  of  money  into 

2.  Andrews  Stephens'  Plead.,  sec.  within  a  reasonable  time  after  ac- 
97.  ceptance.  See,  generally,  Puterburgh's 

3.  Tlif  tender  must  be  kept  good  Com.  Law,  Plead.  &  Prac.  (7th  Ed.), 
and  the  money  ready  to  b«  delivered  211. 


Chap.  XX.]  Of  Pleadixo.  565 

court.  If  after  the  money  paid  in  the  plaintiff  proceeds  in 
his  suit,  it  is  at  his  own  peril,  for  if  he  does  not  prove  more 
due  than  is  so  paid  into  court,  he  shall  be  non-suited  and 
pay  the  defendant  costs;  but  he  shall  still  have  the  money 
so  paid  in,  for  that  the  defendant  has  acknowledged  to  be 
his  due.  To  this  head  may  also  be  referred  the  practice 
[authorized  by  statute]  of  what  is  called  a  set-off,*  whereby 
the  defendant  acknowledges  the  justice  of  the  plaintiff's 
demand  on  the  one  hand,  but  on  the  other  sets  up  the  de- 
mand of  his  own  to  counterbalance  that  of  the  plaintiff, 
either  in  the  whole  or  in  part:  as,  if  the  plaintiff  sues  for 
ten  pounds  due  on  a  note  of  hand,  the  defendant  may  set  off 
nine  pounds  due  to  himself  for  merchandise  sold  to  the 
plaintiff,  and  in  case  he  pleads  such  set-off,  must  pay  the  re- 
maining balance  into  court. 

Pleas  that  totally  deny  the  cause  of  complaint  are  either 
the  (jeneral  issue  or  a  special  plea  in  bar.  [-305] 

1.  The  general  issue,  or  general  plea,  is  what  traverses, 
thwarts,  and  denies  at  once  the  whole  declaration,  without 
offering  any  special  matter  whereby  to  evade  it.  As  in 
trespass,  either  vl  et  arniis  or  on  the  case,  non  culpahUis,  not 
guilty;  in  debt  upon  contract,  nihil  debet;,  he  owes  nothing; 
in  debt  on  bond,  non  est  factum,  it  is  not  his  deed;  on  an 
assumpsit^,  non  assumpsit,  he  made  no  such  promise.  It  is 
an  invariable  rule  that  every  defence  which  cannot  be  speci- 
ally pleaded  may  be  given  in  evidence  upon  the  general  issue 
at  the  trial.^ 

2.  Special  pleas,  in-  har  of  the  plaintiff's  demand,  are  very 
various;  according  to  the  circumstances  of  the  defendant's 
case.  [306]     As  in  personal  actions,  an  accord,  arbitration, 

4.  Regulated  by  statute  in  all  the  burgh's    Com.    Law,    PI.   &    Pr.    ( 7th 

states,  so  that  a  judgment  over  may  Ed.),  151;  1  Green's  New  Prac,  *22y, 

be  recovered  by  the  defendant  against  *229. 

the  plaintiff  when  the  set-off  exceeds  5.  Tliis    plea    is    in   general    use    in 

the  plaintiff's  demand.  Illinois,  Michigan  and  probably  other 

Recoupement  is  also  a  defence.   This'  atates.      Its    form    has,    however,    in 

is   where   the  defendant   claims  dam-  Michigan,    been    changed    by    statute, 

ages    against    the    plaintiff,    for    the  though    its    legal   effect   is   the  same, 

breach   of  the  same  contract  that   is  2  Green's  New  Prac.  *1509. 
sued  on.     See  local  statutes:    Puter- 


566  Of  Pleading.  [Book  III. 

conditions  performed,  nonage  of  the  defendant,  or  some 
other  fact  which  precludes  the  plaintiff  from  his  action.  A 
justification  is  likewise  a  special  plea  in  bar,  as  in  actions  of 
assault  and  battery,  son  assault  demesne,  that  it  was  the 
plaintiff's  own  original  assault;  in  trespass,  that  the  defend- 
ant did  the  thing  complained  of  in  right  of  some  office  which 
warranted  him  so  to  do ;  or,  in  an  action  of  slander,  that  the 
plaintiff  is  really  as  bad  a  man  as  the  defendant  said  he  was. 

Also,  a  man  may  plead  the  statutes  of  limitation  in  bar, 
or  the  time  limited  by  certain  acts  of  parliament,  beyond 
which  no  plaintiff  can  lay  his  cause  of  action.*' 

An  estoppel  is  likewise  a  special  plea  in  bar,  which  hap- 
pens where  a  man  hath  done  some  act  or  executed  some 
deed  which  estops  or  precludes  him  from  averring  anything 
to  the  contrary.  [308] 

The  conditions  and  qualities  of  a  plea  (which,  as  well  as 
the  doctrine  of  estoppels,  will  also  hold  equally  [mutatis 
mutandisy  with  regard  to  other  parts  of  pleading)  are:  1. 
That  it  be  single  and  containing  only  one  matter  [i.  e.,  in 
each  place],  for  duplicity  begets  confusion.*  But  by  stat- 
ute 4  &  5  Anne,  c.  16,  a  man  with  leave  of  the  court  may 
plead  two  or  more  distinct  matters  or  single  pleas,  as  in  an 
action  of  assault  and  battery,  these  three,  not  guilty,  son 
assault  demesne,  and  the  statute  of  limitations.  2.  That  it 
be  direct  and  positive,  and  not  argumentative.  3.  That  it 
have  convenient  certainty  of  time,  place,  and  persons.  4. 
That  it  answer  the  plaintiff's  allegations  in  every  material 
point.    5.  That  it  be  so  pleaded  as  to  be  capable  of  trial. 

Special  pleas  are  usually  in  the  affirmative,  sometimes  in 
the  negative;  but  they  always  advance  some  new  fact  not 
mentioned  in  the  declaration,  and  then  they  must  be  averred 
to  be  true  in  the  common  form,  "  and  this  he  is  ready  to 
verify."^  [309]  This  is  not  necessary  in  pleas  of  the  gen- 
eral issue,  those  always  containing  a  total  denial  of  the  facts 
before  advanced  by  the  other  party,  and  therefore  putting 
him  upon  the  proof  of  them. 

6.  Consult  the  local  statutes  as  the  8.  Leave  of  court  is  no  longer  nec- 
statutes  are  not  uniform  in  the  dif-      essary. 

ferent  states.  9.  Mere   matter   of    form    but    still 

7.  The  terms  being  changed.  used. 


Chap.  XX.]  Of  Pleading.  567 

No  man  is  allowed  to  plead  specially  such  a  plea  as 
amounts  only  to  the  general  issue,  or  a  total  denial  of  the 
charge;  but  in  such  case  he  shall  be  driven  to  plead  the 
general  issue  in  terms,  whereby  the  whole  question  is  re- 
ferred to  a  jury.  But  if  the  defendant,  in  an  assise  or  action 
of  trespass,  be  desirous  to  refer  the  validity  of  his  title  to 
the  court  rather  than  the  jury,  he  may  state  his  title  speci- 
ally, and  at  the  same  time  give  color  to  the  plaintiff,  or 
suppose  him  to  have  an  appearance  or  color  of  title,  bad 
indeed  in  point  of  law,  but  of  which  the  jury  are  not  com- 
petent judges.^ 

As  if  his  own  true  title  be  that  he  claims  by  feoffment  with  livery  from 
A,  by  force  of  which  he  entered  on  the  lands  in  question,  he  cannot  plead 
this  by  itself,  as  it  amounts  to  no  more  than  the  general  issue  (nul  tort, 
nul  disseisin)  in  assise,  or  not  guilty  in  an  action  of  trespass.  But  he 
may  allege  this  specially,  provided  he  goes  farther  and  says  that  the 
plaintiff  claiming  by  color  of  a  prior  deed  of  feoffment  without  livery 
entered,  upon  whom  he  entered,  and  may  then  refer  himself  to  the  judg- 
ment of  the  court  which  of  these  two  titles  is  the  best  in  point  of  law. 

When  the  plea  of  the  defendant  is  thus  put  in,  if  il  does 
not  amount  to  an  issue  or  total  contradiction  of  the  declara- 
tion, but  only  evades  it,  the  plaintiff  may  plead  again,  and 
reply  to  the  defendant's  plea  either  traversing  it,  —  that  is, 
totally  denying  it, —  or  he  may  allege  new  matter  in  contra- 
diction to  the  defendant's  plea,  as  when  the  defendant 
pleads  no  award  made  the  plaintiff  may  reply  and  set  forth 
an  actual  award  and  assign  a  breach;  or  the  replication 
may  confess  and  avoid  the  plea,  by  some  new  matter  or  dis- 
tinction consistent  with  the  plaintiff's  former  declaration, 
as  in  an  action  for  trespassing  upon  land  v/hereof  the  plain- 
tiff is  seised,  if  the  defendant  shows  a  title  to  the  land  by 
descent,  and  that  therefore  he  had  a  right  to  enter,  and 
gives  color  to  the  plaintiff,  the  plaintiff  may  either  traverse 
and  totally  deny  the  fact  of  the  descent,  or  he  may  confess 
and  avoid  it  by  replying  that  true  it  is  that  such  descent 
happened,  but  that  since  the  descent  the  defendant  himself 

1.  See  Gould's  Plead.,  ch.  6,  part  3,  . 

sees.   81-84;    Stephens'  Plead.,   ch.   5, 
Bee.  13. 


5GS  Of  Pleading.  [Book  III. 

demised  the  lands  to  the  plaintiff  for  term  of  life.  [310] 
To  the  replication  the  defendant  may  rejoin,  or  put  in  an 
answer  called  a  rejoinder.  The  plaintiff  may  answer  the 
rejoinder  by  a  sur-re joinder,  upon  which  the  defendant  may 
rebut,  and  the  plaintiff  answer  him  by  a  sur-rebutter.^ 

In  the  several  stages  of  the  pleading  it  must  be  carefully 
observed  not  to  depart  or  vary  from  the  title  or  defence 
which  the  party  has  once  insisted  on,  for  this  (which  is 
called  a  departure  in  pleading)  might  occasion  endless  alter- 
cation. Therefore  the  replication  must  support  the  declara- 
tion, and  the  rejoinder  must  support  the  plea,  without  de- 
parting out  of  it.  As  in  the  case  of  pleading  no  award  made 
in  consequence  of  a  bond  of  arbitration,  to  which  the  plain- 
tiff replies,  setting  forth  an  actual  award:  now  the  defend- 
ant cannot  rejoin  that  he  hath  performed  this  award,  for 
such  rejoinder  would  be  an  entire  departure  from  his  orig- 
inal plea,  which  alleged  that  no  such  award  was  made, 
therefore  he  has  now  no  other  choice  but  to  traverse  the 
fact  of  the  replication,  or  else  to  demur  upon  the  law  of 
it.  [311] 

Yet  in  many  actions  the  plaintiff,  who  has  alleged  in  his 
declaration  a  general  wrojig,  may  in  his  replication,  after 
an  evasive  plea  by  the  defendant,  reduce  that  general  wrong 
to  a  more  particular  certainty  by  assigning  the  injury 
afresh  with  all  its  specific  circumstances  in  such  manner 
as  clearly  to  ascertain  and  identify  it,  consistently  with  his 
general  complaint,  which  is.  called  a  new  or  novel  assign- 
ment. As  if  the  plaintiff  in  trespass  declares  on  a  breacli 
of  his  close  in  D,  and  the  defendant  pleads  that  the  place 
where  the  injury  is  said  to  have  happened  is  a  certain  close 
of  pasture  in  D,  which  descended  to  him  from  B,  his  father, 
and  so  is  his.  own  freehold,  the  plaintiff  may  reply  and 
assign  another  close  in  D,  specifying  the  abuttals  and 
boundaries  as  the  real  place  of  the  injury.'' 

Duplicity  in  pleading  must  be  avoided.  Every  plea  must 
be  simple,  entire,  connected,  and  confined  to  one  single 

2.  Tlie  pleadings  will  rarely  extend  3.  See,       generally,       Puterburgh'9 

so  far  as  the  surrebutter.  Com.  Law,  Plead.  &  Prac.   (7th  Ed.), 

361. 


Chap.  XX.]  Of  Pleading.  569 

point:  it  must  never  be  entangled  with  a  variety  of  distinct, 
independent  answers  to  the  same  matter,  which  must  re- 
quire as  many  different  replies  and  introduce  a  multitude 
of  issues  upon  one  and  the  same  dispute.  For  this  would 
often  embarrass  the  jury,  and  sometimes  the  court  itself, 
and  at  all  events  would  greatly  enhance  the  expense  of  the 
parties. 

Yet  it  frequently  is  expedient  to  plead  in  such  a  manner  as  to  avoid 
any  implied  admission  of  a  fact  which  cannot  with  propriety  or  safety  be 
positively  affirmed  or  denied.  And  this  may  be  done  by  what  is  called  a 
protestation,  whereby  the  party  interposes  an  oblique  allegation  or  de- 
nial of  some  fact,  protesting  (by  the  gerund  protestando)  that  such  a 
matter  does  or  does  not  exist,  and  at  the  same  time  avoiding  a  direct 
affirmation  or  denial.  Sir  Edward  Coke  hath  defined  a  protestation  (in 
the  pithy  dialect  of  that  age)  to  be  "  an  exclusion  of  a  conclusion."  For 
the  use  of  it  is  to  save  the  party  from  being  concluded  with  respect  to 
some  fact  or  circumstance  which  cannot  be  directly  affirmed  or  denied 
without  falling  into  duplicity  of  pleading,  and  which  yet,  if  he  did  not 
thus  enter  his  protest,  he  might  be  deemed  to  have  tacitly  waived  or  ad- 
mitted. [312] 

In  any  stage  of  the  pleadings,  when  either  side  advances 
or  affirms  any  new  matter,  he  usually  avers  it  to  be  true, 
* '  and  this  he  is  ready  to  verify. ' '  [313]  On  the  other  hand, 
when  either  side  traverses  or  denies  the  facts  pleaded  by 
his  antagonist,  he  usually  tenders  an  issue,  as  it  is  called, 
the  language  of  which  is  different  according  to  the  party  by 
whom  the  issue  is  tendered;  for  if  the  traverse  or  denial 
comes  from  the  defendant,  the  issue  is  tendered  in  this 
manner,  '*  and  of  this  he  puts  himself  upon  the  country,'* 
thereby  submitting  himself  to  the  judgment  of  his  peers. 
But  if  the  traverse  lies  upon  the  plaintiff  he  tenders  the 
issue,  or  prays  the  judgment  of  the  peers  against  the  defend- 
ant in  another  form,  thus:  **  and  this  he  prays  may  be  in- 
quired of  by  the  country."* 

But  if  either  side  (as,  for  instance,  the  defendant)  pleads 
a  special  negative  plea,  not  traversing  or  denying  anything 
that  was  before  alleged,  but  disclosing  some  new  negative 
matter,  as  where  the  suit  is  on  a  bond  conditioned  to  per- 

4.  These   forms   are   still    observed. 


570  Of  Pleading.  [Book  III. 

form  an  award,  and  the  defendant  pleads,  negatively,  that 
no  award  was  made,  he  tenders  no  issue  upon  this  plea, 
because  it  does  not  appear  whether  the  fact  will  be  dis- 
puted, the  plaintiff  not  having  yet  asserted  the  existence 
of  any  award;  but  when  the  plaintiff  replies  and  sets  forth 
an  actual  specific  award,  if  then  the  defendant  traverses  the 
replication  and  denies  the  making  of  any  such  award,  he 
then,  and  not  before,  tenders  an  issue  to  the  plaintiff.  For 
when  in  the  course  of  pleading  they  come  to  a  point  which 
is  affirmed  on  one  side  and  denied  on  the  other,  they  are 
then  said  to  be  at  issue,  all  their  debates  being  at  last  con- 
tracted into  a  single  point,  which  must  now  be  determined 
either  in  favor  of  the  plaintiff  or  of  the  defendant. 


Chap.  XXL}  Of  Issue  and  Demurrbe.  571 


CHAPTER  XXI. 

OF  ISSUE  AND  DEMURRER. 

Issue  {exitus),  being  the  end  of  all  the  pleadings,  is  the 
fourth  part  or  stage  of  an  action,  and  is  either  upon  matter 
of  laio  or  matter  of  fact.  [314] 

An  issue  upon  matter  of  law  is  called  a  demurrer,  and  it 
confesses  the  facts  to  be  true  as  stated  by  the  opposite 
party,  but  denies  that  by  the  law  arising  upon  those  facts 
any  injury  is  done  to  the  plaintiff,  or  that  the  defendant 
has  made  out  a  legitimate  excuse;  according  to  the  party 
which  first  demurs  (demoratur),  rests,  or  abides  upon  the 
point  in  question.  As  if  the  matter  of  the  plaintiff's  com- 
plaint or  declaration  be  insufficient  in  law,  as  by  not  assign- 
ing any  sufficient  trespass,  then  the  defendant  demurs  to 
the  declaration;  if,  on  the  other  hand,  the  defendant's  ex- 
cuse or  plea  be  invalid,  as  if  he  pleads  that  he  committed  a 
trespass  by  authority  from  a  stranger  without  making  out 
the  stranger's  right,  here  the  plaintiff  may  demur  in  law  to 
the  plea;  and  so  on  in  every  other  part  of  the  proceedings 
where  either  side  perceives  any  material  objection  in  point 
of  law  upon  which  he  may  rest  his  case. 

The  form  of  such  demurrer  is  by  averring  the  declaration 
or  plea,  the  replication  or  rejoinder,  to  be  insufficient  in  law 
to  maintain  the  action  or  the  defence,  and  therefore  praying 
judgment  for  want  of  sufficient  matter  alleged.  [315]  Some- 
times demurrers  are  merely  for  want  of  sufficient  form  in 
the  writ  or  declaration.  But  in  cases  of  exceptions  to  the 
form  or  manner  of  pleading,  the  party  demurring  must,  by 
statute  27  Eliz.  c.  5,  and  4  &  5  Anne,  c.  16,  set  forth  the 
causes  of  his  demurrer,  or  wherein  he  apprehends  the  de- 
ficiency to  consist.  And  upon  either  a  general  or  such  a 
special  demurrer  the  opposite  party  must  aver  it  to  be  suffi- 
cient, which  is  called  a  joinder  in  demurrer,^  and  then  the 
parties  are  at  issue  in  point  of  law;  which  issue  in  law,  or 

1.  The    practice    is    still    the   same 
whefe  not  changed  by  statute. 


572  Of  Issue  axd  Demurrer.  [Book  IIT. 

demurrer,  the  judges  of  the  court  before  which  the  action 
is  brought  must  determine.  • 

An  issue  of  fact  is  where  the  fact  only,  and  not  tlie  law, 
is  disputed.  And  when  he  that  denies  or  traverses  the  fact 
pleaded  by  his  antagonist  has  tendered  the  issue,  —  thus: 
**  and  this  he  prays  may  be  inquired  of  by  the  countrj'^;  "  or 
"  and  of  this  he  puts  himself  upon  the  country,"  —  it  may 
immediately  be  subjoined  by  the  other  party,  *^  and  the  said 
A  B  doth  the  like  [similiter],"  which  done,  the  issue  is  said 
to  be  joined,  both  parties  having  agreed  to  rest  the  fate  of 
the  cause  upon  the  truth  of  the  fact  in  question.  And  this 
issue  of  fact  must,  generally  speaking,  be  determined,  not 
by  the  judges  of  the  court,  but  by  some  other  method,  the 
principal  of  which  methods  is  that  by  the  country,  per  pais 
(in  Latin  per  patriam),  that  is,  by  jury.^ 

But  here  it  will  be  proper  to  observe  that  during  the  whole  of  these 
proceedings,  from  the  time  of  the  defendant's  appearance  in  obedience 
to  the  king's  writ,  it  is  necessary  that  both  the  parties  be  kept  or  con- 
tinned  in  court  from  day  to  day  till  the  final  determination  of  the  suit. 
[316]  For  the  court  can  determine  nothing  unless  in  the  presence  of 
both  the  parties,  in  person  or  by  their  attorneys,  or  upon  default  of  one 
of  them,  after  his  original  appearance  and  a  time  prefixed  for  his  ap- 
pearane  in  court  again.  Therefore  in  the  course  of  pleading,  if  either 
party  neglects  to  put  in  his  declaration,  plea,  replication,  rejoinder,  and 
the  like,  within  the  times  allotted  by  the  standing  rules  of  the  court, 
the  plaintiff,  if  the  omission  be  his,  is  said  to  be  nonsuit,  or  not  to  follow 
and  pursue  his  complaint,  and  shall  lose  the  benefit  of  his  writ;  or,  if  the 
negligence  be  on  the  side  of  the  defendant,  judgment  may  be  had  against 
him  for  such  his  default.  And  after  issue  or  demurrer  joined,  as  well 
as  in  some  of  the  previous  stages  of  proceeding,  a  day  is  continually  given 
and  entered  upon  the  record  for  the  parties  to  appear  on  from  time  to 
time,  as  the  exigence  of  the  case  may  require.  The  giving  of  this  day  is 
called  the  continuance,  because  thereby  the  proceedings  are  continued 
without  interruption  from  one  adjournment  to  another.  If  these  con- 
tinuances are  omitted,  the  cause  is  thereby  discontinued,  and  the  defend- 
ant is  discharged  sine  die,  without  a  day,  for  this  turn;  for  by  his  ap- 
pearance in  court  he  has  obeyed  the  command  of  the  king's  writ,  and 
unless  he  be  adjourned  over  to  a  certain  day  he  is  no  longer  bound  to 

2.  It  is  a  maxim  that  the  court  re-  court  by   consent  of  the   parties.     In 

spends   to   questions   of  law   and   the  Manitoba,  Canada,  this  is  the  regular 

jury  to  questions  of  fact.     By  statute  practice,   trial   by   jury   being   rather 

in    some    states    all    the    issues,    both  unusual, 
fact    and    law,   may   be   tried   by   the 


Chap.  XXL]  Of  Issue  axd  Demurrer.  573 

attend  upon  that  summons,  but  he  must  be  warned  afresh,  and  the  whola 
must  begin  de  novo.    [Not  so  now  in  courts  of  record.] 

Now  it  may  sometimes  happen  that  after  the  defendant 
has  pleaded,  nay,  even  after  issue  or  demurrer  joined,  there 
may  have  arisen  some  new  matter  which  it  is  proper  for  the 
defendant  to  plead,  as  that  the  plaintiff,  being  a  feme-sole, 
is  since  married,  or  that  she  has  given  the  defendant  a  re- 
lease, and  the  like;  here,  if  the  defendant  takes  advantage 
of  this  new  matter  as  early  as  he  possibly  can,  viz.,  at  the 
day  given  for  his  next  appearance,  he  is  permitted  to  plead 
it  in  what  is  called  a  plea  of  puis  darrein  continuance,'  or 
since  the  last  adjournment.  For  it  would  be  unjust  to  ex- 
clude him  from  the  benefit  of  this  new  defence,  which  it  was 
not  in  his  power  to  make  when  he  pleaded  the  former.  [317] 
But  it  is  dangerous  to  rely  on  such  a  plea  without  due  con- 
sideration, for  it  confesses  the  matter  which  was  before  in 
dispute  between  the  parties.  And  it  is  not  allowed  to  be 
put  in  if  any  continuance  has  intervened  between  the  arising 
of  this  fresh  matter  and  the  pleading  of  it;  for  then  the 
defendant  is  guilty  of  neglect,  or  laches,  and  is  supposed  to 
rely  on  the  merits  of  his  former  plea.  Also  it  is  not  allowed 
after  a  demurrer  is  determined,  or  verdict  given,  because 
the  relief  may  be  had  in  another  way,  namely,  by  writ  of 
audita  querela,  of  which  hereafter.  And  these  pleas  puis 
darrein  continuance,  when  brought  to  a  demurrer  in  law  or 
issue  of  fact,  shall  be  determined  in  like  manner  as  other 
pleas. 

Demurrers,  or  questions  concerning  the  sufficiency  of  the 
matters  alleged  in  the  pleadings,  are  to  be  determined  by 
the  judges  of  the  court  upon  solemn  argument  by  counsel 
on  both  sides,  and  to  that  end  a  demurrer-book  is  made  ur>, 
containing  all  the  proceedings  at  length,  which  are  after- 
wards entered  on  record,  and  copies  thereof,  called  paper- 
hooks,  are  delivered  to  the  judges  to  peruse.  The  record  is 
a  history  of  the  most  material  proceedings  in -the  cause 

3.  See     Puterburgh's     Com.     Law.      sort.      Id.      Ross   v.   Nesbit,    2    Gilm. 
riead.  &  Prac.   (7th  Ed.),  244.     Great       252. 
certainty  is  required  in  a  plea  of  this 


574  Of  Issue  and  Demuebeb.  [Book  III. 

entered  on  a  parchment  roll,*  and  continued  down  to  the 
present  time,  in  which  must  be  stated  the  original  writ  and 
summons,  all  the  pleadings,  the  declaration,  view  or  oyer 
prayed,  the  imparlances,  plea,  replication,  rejoinder,  con- 
tinuances, and  whatever  further  proceedings  have  been  had, 
all  entered  cerhatim  on  the  roll,  and  also  the  issue  or  de- 
murrer, and  joinder  therein. 

These  were  formerly  all  written,  as  indeed  all  public  proceedings  were, 
in  >'ornmn  or  law  French,  and  even  the  arguments  of  the  counsel  and 
decisions  of  the  court  were  in  the  same  barbarous  dialect.  This  con- 
tinued till  the  reign  of  Edward  III.,  when  by  a  statute  passed  in  the 
thirty-sixth  year  of  his  reign  [1362],  it  was  enacted  that  for  the  future 
all  pleas  should  be  pleaded,  shown,  defended,  answered,  debated,  and 
judged  in  the  English  tongue,  but  be  entered  and  enrolled  in  Latin.  [318] 
The  praetisers,  however,  being  used  to  the  Norman  language,  still  con- 
tinued to  take  their  notes  in  law  French,  and  of  course  when  those  notes 
came  to  be  published  under  the  denomination  of  reports  they  were 
printed  in  that  barbarous  dialect. 

This  technical  Latin  continued  in  use  from  the  time  of  its  first  intro- 
duction till  the  subversion  of  our  ancient  constitution  under  Cromwell, 
when,  among  many  other  innovations  in  the  law,  the  language  of  our 
records  was  altered  and  turned  into  English.  [322]  But  at  the  restora- 
tion of  King  Charles  this  novelty  was  no  longer  countenanced,  the  prae- 
tisers finding  it  very  difficult  to  express  themselves  so  concisely  or  signi- 
ficantly in  any  other  language  but  the  Latin.  And  thus  it  continued 
without  any  sensible  inconvenience  till  about  the  year  1730,  when  it 
was  again  thought  proper  that  the  proceedings  at  law  should  be  done  into 
English,  and  it  was  accordingly  so  ordered  by  statute  4  Geo.  II.  c.  26.5 

4.  The  common  law  record  now  con-  all  the  papers  on  file)  and  entries 
tains  the  same  items;  but  the  original  constitute  the  record.  A  bill  of  ex- 
pleadings  with  their  file  marks  and  ceptions  may  be  necessary  to  get  other 
the  entries  of  verdict,  judgment,  etc.,  matters  into  the  record.  This  will 
in  the  books  of  records  now  consti-  be  considered  in  another  place, 
lute  the  record  without  the  enroll-  5.  All  proceedings  in  our  courts  are 
ment  on  parchment  as  described  in  in  English, 
tn^  text.     In  short  the  files   (but  not 


Chap.  XXII.]     Of  the  Several  Species  of  Trial,  575 


CHAPTEK  XXII. 

OP  THE  SEVEEAL  SPECIES  OF  TRIAL. ' 

Trial  is  the  examination  of  the  matter  of  fact  in  issue. 

[330] 

The  species  of  trials  in  civil  cases  are  seven.  By  record; 
by  inspection  or  examination;  by  certificate;  by  witnesses; 
by  wager  of  battle;  by  wager  of  law;  and  by  jury. 

I.  First,  then,  of  the  trial  by  record.  This  is  only  used 
in  one  particular  instance,  and  that  is  where  a  matter  of 
record  is  pleaded  in  any  action,  as  a  fine,  a  judgment,  or  the 
like,  and  the  opposite  party  pleads  '  *  nul  tiel  record, ' '  that 
there  is  no  such  matter  of  record  existing.  Upon  this,  issue 
is  tendered  and  joined  in  the  following  form,  ' '  and  this  he 
prays  may  be  inquired  of  by  the  record,  and  the  other  doth 
the  like;  "  and  hereupon  the  party  pleading  the  record 
has  a  day  given  him  to  bring  it  in,  and  proclamation  is 
made  in  court  for  him  to  *'  bring  forth  the  record  by  him 
in  pleading  alleged,  or  else  he  shall  be  condemned,"  and 
on  his  failure  his  antagonist  shall  have  judgment  to  re- 
cover [331]  The  trial,  therefore,  of  this  issue  is  merely 
by  the  record,^  for,  as  Sir  Edward  Coke  observes,  a  record 
or  enrolment  is  a  monument  of  so  high  a  nature,  and  im- 
porteth  in  itself  such  absolute  verity,  that  if  it  be  pleaded 
that  there  is  no  such  record,  it  shall  not  receive  any  trial 
by  witness,  jury,  or  otherwise,  but  only  by  itself. 

II.  Trial  by  inspection  or  examination  2  is  when,  for  the  greater  ex- 
pedition of  a  cause,  in  some  point  or  issue,  being  either  the  principal 
question  or  arising  collaterally  out  of  it,  but  being  evidently  the  object 
of  senses,  the  judges  of  the  court,  upon  the  testimony  of  their  own  sense, 
shall  decide  the  point  in  dispute.  For  where  the  affirmative  or  negative 
of  a  question  is  matter  of  such  obvious  determination,  it  is  not  thought 
necessary  to  summon  a  jury  to  decide  it,  who  are  properly  called  in  to 
inform  the  conscience  of  the  court  in  respect  of  dubious  facts;  and  there- 
fore when  the  fact,  from  its  nature,  must  be  evident  to  the  court  either 

1.  The  court  determines  this   issue  2.  This    method    of    trial    probably 

by  an  inspection  of  the  transcript  of      does  not  exist  in  this  country. 
the  record.     Puterburgh's  Com.  Law, 
Plead.  &  Prac.   (7th  Ed.),  495,  496. 


576  Of  the  Several  Species  of  Trial.      [Book  TIT. 

from  ocular  demonstration  or  other  irrefragable  proof,  there  the  law  de- 
parts from  its  usual  resort,  the  verdict  of  twelve  men,  and  relies  on  the 
judgment  of  the  court  alone.  [332]  As  in  case  of  a  suit  to  reverse  a 
fine  for  nonage  of  the  cognizor,  or  to  set  aside  a  statute  or  recognizance 
entered  into  by  an  infant,  here,  and  in  other  cases  of  the  like  sort,  a  writ 
shall  issue  to  the  sheriff,  commanding  him  that  he  constrain  the  said 
party  to  appear,  that  it  may  be  ascertained  by  the  view  of  his  body  by 
the  king's  justices  whether  he  be  of  full  age  or  not.  If,  however,  the 
court  has,  upon  inspection,  any  doubt  of  the  age  of  the  party  (as  may 
frequently  be  the  case),  it  may  proceed  to  take  proofs  of  the  fact,  and 
particularly  may  examine  the  infant  himself  upon  an  oath  of  voire  dire, 
veritatem  dicere,^  that  is,  to  make  true  answer  to  such  questions  as  the 
court  shall  demand  of  him;  or  the  court  may  examine  his  mother,  his 
godfather,  or  the  like. 

In  like  manner,  if  a  defendant  pleads  in  abatement  of  the  suit  that  the 
plaintiff  is  dead,  and  one  appears  and  calls  himself  the  plaintiff,  which 
the  defendant  denies,  in  this  case  the  judges  shall  determine  by  inspec- 
tion and  examination  whether  he  be  the  pla:intiff  or  not.  Also  if  a  man 
be  found  by  a  jury  an  idiot  a  natiiitate,  he  may  come  in  person  into  the 
Chancery  before  the  chancellor,  or  be  brought  there  by  his  friends,  to  be 
inspected  and  examined  whether  idiot  or  not;  and  if  upon  such  view  and 
inquiry  it  appears  he  is  not  so,  the  verdict  of  the  jury  and  all  the  pro- 
ceedings thereon  are  utterly  void  and  instantly  of  no  effect. 

Also,  to  ascertain  any  circumstances  relative  to  a  particular  day  past, 
it  hath  been  tried  by  an  inspection  of  the  almanac  by  the  court.  [333] 
But  in  all  these  cases  the  judges,  if  they  conceive  a  doubt,  may  order  it 
to  be  tried  by  jury. 

III.  The  trial  by  certitteate  is  allowed  in  such  cases  where  the  evidence 
of  the  person  certifying  is  the  only  proper  criterion  of  the  point  in  dis- 
pute. For  when  the  fact  in  question  lies  out  of  the  cognizance  of  the 
court  the  judges  must  rely  on  the  solemn  averment  or  information  of 
persons  in  such  a  station  as  affords  them  the  most  clear  and  competent 
knowledge  of  the  truth.  As,  therefore,  such  evidence  (if  given  to  a  jury) 
must  have  been  conclusive,  the  law,  to  save  trouble  and  circuity,  permits 
the  fact  to  be  determined  upon  such  certificate  merely.  Thus,  if  the  issue 
be  whether  A  was  absent  with  the  king  in  his  army  out  of  the  realm  in 
time  of  war,  this  shall  be  tried  by  the  certificate  of  the  mareschal  of  the 
king's  host  in  writing  under  his  seal,  which  shall  be  sent  to  the  justices. 
For  matters  within  the  realm,  the  customs  of  the  city  of  London  shall 
be  tried  by  the  certificate  of  the  mayor  and  aldermen  certified  by  the 
mouth  of  their  recorder,  upon  a  surmise  from  the  party  alleging  it  that 
the  custom  ought  to  be  thus  tried,  else  it  must  be  tried  by  the  country. 
[334]  In  some  cases  the  sheriff  of  London's  certificate  shall  be  the  final 
trial,  as  if  the  issue  be  whether  the  defendant  be  a  citizen  of  London  or 
a  foreigner,  in  case  of  privilege  pleaded  to  be  sued  only  in  the  city  courts. 

8.  To  speak  the  truth. 


Chap.  XXII.]     Of  the  Several  Species  of  Trial.  377 

[335]  In  matters  of  ecclesiastical  jurisdiction,  as  marriage,  and  of  course 
general  bastardy,  and  also  excommunication  and  orders,  these  and  other 
like  matters  shall  be  tried  by  the  bishop's  certificate.  The  trial  of  all 
customs  and  practice  of  the  courts  shall  be  by  certificate  from  the  proper 
officers  of  those  courts  respectively,  and  what  return  was  made  on  a 
writ  by  the  sheriff  or  under-sheriff  shall  be  only  tried  by  his  own 
certificate.*  [336] 

IV.  A  fourth  species  of  trial  is  that  by  witnesses,  per 
testes,  without  the  intervention  of  a  jur5^  This  is  the  only- 
method  of  trial  known  to  the  civil  law  in  which  the  judge 
is  left  to  form  in  his  own  breast  his  sentence  upon  the  credit 
of  the  witnesses  examined.  But  it  is  very  rarely  used  in 
our  law,  which  prefers  the  trial  by  jury  before  it  in  almost 
every  instance,  save  only  that  when  a  widow  brings  a  writ 
of  dower,  and  the  tenant  pleads  that  the  husband  is  not 
dead,  this,  being  looked  upon  as  a  dilatory  plea,  is  in  favor 
of  the  widow,  and  for  greater  expedition  allowed  to  be  tried 
by  witnesses  examined  before  the  judges;  and  so,  saitli 
Finch,  shall  no  other  case  in  our  law.  But  Sir  Edward 
Coke  mentions  some  others,  as  to  try  whether  the  tenant 
in  a  real  action  was  duly  summoned  or  the  validity  of  a 
challenge  to  a  juror,  so  that  Finch's  observation  must  be 
confined  to  the  trial  of  direct,  and  not  collateral  issues.^ 
And  in  every  case  Sir  Edward  Coke  lays  it  down  that  the 
affirmative  must  be  proved  by  two  witnesses  at  the  least." 

v.  The  next  species  of  trial  is  of  great  antiquity,  but  much  disused, 
though  still  in  force  if  the  parties  choose  to  abide  by  it;  I  mean  the 
trial  by  wager  of  battle.  [337]  [Obsolete.]  This  trial  was  introduced 
into  England  among  other  Norman  customs  by  William  the  Conqueror; 
but  was  only  used  in  three  cases,  one  military,  one  criminal,  and  the 
third  civil.  The  first  in  the  court-martial,  or  Court  of  Chivalry  and 
Honor;   the  second  in  appeals  of  felony,  of  which  we  shall  speak  in  the 

4.  In  this  country  marriage,  bas-  6.  In  courts  of  law,  in  general,  it 
tardy,  absence  in  the  army,  etc.,  would  suffices  to  prove  a  fact  by  one  wit- 
be  established  before  a  jury  as  in  any  ness.  In  courts  of  equity  it  is  some- 
other  case.  times    otliervvise,    and    two    witnesses 

5.  By  statute  in  many  of  (he  states  are  required.  The  exceptions  both  at 
and  in  Canada  issues  of  fact  may,  la^v  and  in  equity  will  be  considered 
where  no  jury  is  demanded,  be  tried  imder  the  head  Evidence  in  vol.  2  of 
by  the  court  without  a  jury.  tliis  series. 

37 


578  Of  the  Seveeal  Species  of  Trial.      [Book  III. 

next  book;   and  the  third  upon  issue  joined  in  a  writ  of  right,  the  last 
and  most  solemn  decisdon  of  real  property.  [338] 

The  last  trial  by  battle  that  was  waged  in  the  Court  of  Common  Pleas 
at  Westminster  (though  there  was  afterwards  one  in  the  Court  of  Chiv- 
alry in  1631  and  another  in  the  County  Palatine  of  Durham  in  1638)  was 
in  the  thirteenth  year  of  Queen  Elizabeth,  A.  D.  1571,  as  reported  by  Sir 
James  Dyer.  [Dyer,  301.  See  also  Ashford  v.  Thornton,  1  B.  &  Aid.  405, 
in  1818,  on  an  appeal  of  murder.] 

VI.  A  sixth  species  of  trial  is  by  "wager  of  law,  vadiatio  legis  [obsolete], 
as  the  foregoing  is  called  wager  of  lattle,  vadiatio  duelli;  because,  as  in 
th.e  former  case,  the  defendant  gavo  a  pledge,  gage,  or  vadium,  to  try  the 
cause  by  battle,  so  here  he  was  to  put  in  sureties  or  vadios,  that  at  such 
a  day  he  will  make  his  law,  that  is,  take  the  benefit  which  the  law  has 
allowed  him.  [341]  For  our  ancestors  considered  that  there  were  many 
cases  wbere  an  innocent  man  of  good  credit  might  be  overborne  by  a 
multitude  of  false  witnesses,  and  therefore  established  this  species  of 
:rial  by  the  oath  of  the  defendant  himself;  for  if  he  will  absolutely  swear 
himself  not  chargeable,  and  appears  to  be  a  person  of  reputation,  he  shall 
go  free  and  forever  acquitted  of  the  debt  or  other  cause  of  action. 

The  manner  of  waging  and  making  law  is  this.  He  that  has  waged, 
or  given  security,  to  make  his  law,  brings  with  him  into  court  eleven 
of  his  neighbors.  [343J  The  defendant,  then  standing  at  the  end  of  the 
bar,  is  admonished  by  the  judges  of  the  nature  and  danger  of  a  false 
oath.  And  if  he  still  persists,  he  is  to. repeat  this  or  the  like  oath: 
"  Hear  this,  ye  justices,  that  I  do  not  owe  unto  Richard  Jones  the  sum 
of  ten  pounds,  nor  any  penny  thereof,  in  manner  and  form  as  the  said 
Richard  hath  declared  against  me.  So  help  me  God."  And  thereupon  his 
eleven  neighbors,  or  compurgators,  shall  avow  upon  their  oaths  that  they 
believe  in  their  consciences  that  he  saith  the  truth,  so  that  himself  must 
be  sworn  de  fidelitate,''  and  the  eleven  de  credulitafe.^  . 

With  us  in  England  wager  of  law  is  never  required,  and  is  only  ad- 
mitted where  an  action  is  brought  upon  such  matters  as  may  be  sup- 
posed to  be  privately  transacted  between  the  parties,  and  wherein  the 
defendant  may  be  presumed  to  have  made  satisfaction  without  being  able 
to  prove  it.  [345]  Therefore  it  is  only  in  actions  of  debt  upon  simple 
contract,  or  for  amercement  [in  a  court  not  of  record],  in  actions  of 
detinue  and  of  account,  where  the  debt  may  have  been  paid,  the  goods 
restored,  or  the  account  balanced,  without  any  evidence  of  either,  that 
the  defendant  is  admitted  to  wage  his  law. 

7.  Upon  his  faith.  8.  Upon  their  belief. 


Chap.  XXIII.]         Of  the  Trial  by  Juey.  679 


CHAPTER  XXIII. 

OF  THE  TRIAL,  BY  JURY. 

Trials  by  jury  in  civil  causes  are  of  two  kinds,  extraordi- 
nary and  ordinary.   [351] 

The  first  species  of  extraordinary  trial  by  jury  is  that  of  the  Grand 
Assize  [for  the  trial  of  writs  of  right]. 

Another  'Species  of  extraordinary  juries  is  the  jury  to  try  an  attaint, 
which  is  a  process  commenced  against  a  former  jury  for  bringing  in  a 
false  verdict  [both  of  which  are  abolished  in  this  country]. 

With  regard  to  the  ordinary  trial  by  jury  in  civil  cases, 
I  shall  in  considering  it  follow  the  order  and  course  of  the 
proceedings  themselves,  as  the  most  clear  and  perspicuous 
way  of  treating  it. 

When  therefore  an  issue  is  joined  by  these  words,  *'  and 
this  the  said  A  prays  may  be  inquired  of  by  the  country," 
or  '  *■  and  of  this  he  puts  .himself  upon  the  country,  and  the 
said  B  does  the  like, ' ' —  the  court  awards  a  writ  of  venire 
facias^  upon  the  roll  or  record,  commanding  the  sheriff 
'  *  that  he  cause  to  come  here  on  such  a  day,  twelve  free  and 
lawful  men,  I'lberos  et  legates  homines,  of  the  body  of  his 
county,  by  whom  the  truth  of  the  matter  may  be  better 
known,  and  who  are  neither  of  kin  to  the  aforesaid  A  nor 
the  aforesaid  B,  to  recognize  the  truth  of  the  issue  between 
the  said  parties.  [352]  And  such  writ  was  accordingly 
issued  to  the  sheriff.  By  the  statute  42  Edw.  III.  c.  11,  it 
was  enacted  that  no  inquests  (except  of  assise  and  gaol 
delivery)  should  be  taken  by  writ  of  nisi  priiis  till  after  the 
sheriff  had  returned  the  names  of  the  jurors  to  the  court 
above.  [353]  So  that  now  the  course  is  to  make  the  sheriff's 
venire  returnable  on  the  last  return  of  the  same  term  wherein 
issue  is  joined,  viz.,  Hilary  or  Trinity  term^,  which  from  the 
making  up  of  the  issues  therein,  are  usually  called  issuable 
terms.     And  he  returns  the  names  of  the  jurors  in  a  panel 

1.  Cause  to  come.     Tliis  writ  still 
issues  by  the  same  name. 


6S0  Of  the  Trial  by  Jury.  [Book  III. 

(a  little  pane,  or  oblong  piece  of  parchment)  annexed  to  the 
writ.  This  jury  is  not  summoned,  and  therefore,  not  appear- 
ing at  the  day,  must  unavoidably  make  default.  [354]  For 
which  reason  a  compulsive  process  is  now  awarded  against 
the  jurors,  called  in  the  Common  Pleas  a  writ  of  habeas 
corpora  juratorum,^  and  in  the  King's  Bench  a  distringas, 
commanding  the  sheriff  to  have  their  bodies  or  to  distrain 
them  by  their  lands  and  goods,  that  they  may  appear  upon 
the  day  appointed.  The  entry,  therefore,  on  the  roll  or 
record  is,  "  that  the  jury  is  respited,  through  defect  of  the 
jurors,  till  the  first  day  of  the  next  term,  then  to  appear  at 
Westminster,  unless  before  that  time,  viz.,  on  Wednesday, 
the  fourth  of  March,  the  justices  of  our  lord  the  king,  ap- 
pointed to  take  assises  in  that  county,  shall  have  come  to 
Oxfdrd,  that  is,  to  the  place  assigned  for  holding  the  assises." 
And  thereupon  the  writ  commands  the  sheriff  to  have  their 
bodies  at  Westminster  on  the  said  first  day  of  next  term,  or 
before  the  said  justices  of  assise,  if  before  that  time  they 
come  to  Oxford,  viz.,  on  the  fourth  of  March  aforesaid.  And 
as  the  judges  are  sure  to  come  and  open  the  circuit  commis- 
sions on  the  day  mentioned  in  the  writ,  the  sheriff  returns 
and  summons  the  jury  to  appear  at  the  assizes,  and  there  the 
trial  is  had  before  the  justices  of  assise  and  nisi  pritis,  among 
whom  are  usually  two  of  the  judges  of  the  courts  of  West- 
minster, the  whole  kingdom  being  divided  into  six  circuits 
for  this  purpose. 

If  the  sheriff  be  not  an  indifferent  person,  as  if  he  be  a 
party  in  the  suit,  or  be  related  by  either  blood  or  affinity 
to  either  of  the  parties,  he  is  not  then  trusted  to  return  the 
jury,  but  the  venire  shall  be  directed  to  the  coroners,  who  in 
this  as  in  many  other  instances  are  the  substitutes  of  the 
sheriff,  to  execute  process  when  he  is  deemed  an  improper 
person.  If  any  exception  lies  to  the  coroners  the  venire 
shall  be  directed  to  two  clerks  of  the  court,  or  two  persons 
of  the  county  named  by  the  court  and  sworn.  [355]  And 
these  tw^o,  who  are  called  elisors,  or  electors,  shall  indif- 
ferently name  the  jury,  and  their  return  is  final,  no  chal- 
lenge being  allowed  to  tlieir  array.^ 

2.  Bring  the  bodies  of  the  jurors.  3.  There  have  been  many  statutorjr. 


Chap.  XXIIL]         Of  the  Tki-al  by  Jury.  581 

When  the  general  day  of  trials  is  fixed,  the  plaintiif  or 
his  attorney  must  bring  down  the  record  to  the  assises, 
and  enter  it  with  the  proper  officer,  in  order  to  its  being 
called  on  in  course.^  If  it  be  not  so  entered,  it  cannot  be 
tried;  therefore  it  is  in  the  plaintiff's  breast  to  delay  any 
trial  by  not  carrying  down  the  record,  unless  the  defendant, 
being  fearful  of  such  neglect  in  the  plaintiff,  and  willing  to 
discharge  himself  from  the  action,  will  himself  undertake 
to  bring  on  the  trial,  giving  proper  notice  to  the  plaintiff. 
[357]  Which  proceeding  is  called  the  trial  by  proviso,  by 
reason  of  the  clause  then  inserted  in  the  sheriff's  venire, 
viz.,  "  proviso,  provided  that  if  two  writs  come  to  your 
hands  (that  is,  one  from  the  plaintiff  and  another  from  the 
defendant)  you  shall  execute  only  one  of  them."  But  this 
practice  hath  begun  to  be  disused  since  the  statute  14 
Geo.  II.  c.  17,  which  enacts  that  if,  after  issue  joined,  ^he 
cause  is  not  carried  down  to  be  tried  according  to  the 
course  of  the  court,  the  plaintiff  shall  be  esteemed  to  be 
nonsuited,  and  judgment  shall  be  given^for  the  defendant 
as  in  case  of  a  nonsuit.  In  case  the  plaintiff  intends  to 
try  the  cause,  he  is  bound  to  give  the  defendant,  if  he  lives 
within  forty  miles  of  London,  eight  days'  notice  of  trial; 
and  if  he  lives  at  a  greater  distance,  then  fourteen  days' 
notice,  m  order  to  prevent  surprise.  And  if  the  plaintiff 
then  changes  his  mind,  and  does  not  countermand  the  no- 
tice six  days  before  the  trial,  he  shall  be  liable  to  paj^  costs 
to  tlie  defendant  for  not  proceeding  to  trial  by  the  same 
last-mentioned  statute.^  The  defendant,  however,  or  plain- 
tiff, may,  upon  good  cause  shown  to  the  court  above,  as  upon 

clianges  in  the  manner  of  selecting  the  and  records.  The  same  judge,  how- 
jurors  and  in  respect  to  tlieir  com-  ever,  is  elected  to  preside  over  the 
petency.  As  these  changes  differ  in  courts /of  several  counties,  where  the 
the  different  states,  the  local  statutes  circuit  comprises  more  than  one 
must  be  consulted.                 '  county. 

4.  In  our  country,  as  a  general  rule,  5.  The   manner   of    making   up   the 

eacli   county   in   the  states,  and   each  trial  calendar  or  docket  of  cases  is  a 

district  in  the  federal   system  consti-  matter  of  local  practice  and  the  local 

tutes  a  separate  court  having  a  sep-  works    on    practice    or    the    rules    of 

arate  seal,  a  complete  set  of  officers  court  and  statutes  must  be  consulted. 


582  Of  the  Trial  by  Juky.  [Book  III. 

absence  or  sikness  of  a  material  witness,  obtain  leave  upon 
motion  to  defer  the  trial  of  the  cause  till  the  next  assises.*^ 

But  we  will  now  suppose  all  previous  steps  to  be  regu- 
larly settled,  and  the  cause  to  be  called  on  in  court.  The 
record  is  then  handed  to  the  judge  to  peruse  and  observe 
the  pleadings,  and  what  issues  the  parties  are  to  maintain 
and  prove,  while  the  jury  is  called  and  sworn.  To  this  end 
the  sheriff  returns  his  compulsive  process  (the  writ  of 
habeas  corpora,  or  distringas),  with  the  panel  of  jurors 
annexed,  to  the  judge's  officer  in  court.  The  jurors  con- 
tained in  the  panel  are  either  special  or  common  jurors. 
Special  jurors  were  originally  introduced  in  trials  at  bar 
when  the  causes  were  of  too  great  nicety  for  the  discussion 
of  ordinary  freeholders,  or  where  the  sheriff  was  suspected 
of  partiality,  though  not  upon  such  apparent  cause  as  to 
warrant  an  exception  to  him.  He  is  in  such  case,  upon  mo- 
tion in  court  and  a  rule  granted  thereupon,  to  attend  the 
prothonotary  or  other  proper  officer  with  his  freeholder's 
book,  and  the  officer  is  to  take  indifferently  forty-eight  of 
the  principal  freeholders  in  the  presence  of  the  attorneys 
on  both  sides,  who  are  each  of  them  to  strike  off  twelve, 
and  the  remaining  twenty-four  are  returned  upon  the  panel. 
[358]  By  the  statute  3  Geo.  II.  c.  25,  either  party  is  entitled 
upon  motion  to  have  a  special  jury  struck  upon  the»trial  of 
any  issue,  as  well  at  the  assises  as  at  bar,  he  paying  the 
extraordinary  expense,  unless  the  judge  will  certify  (in  pur- 
suance of  the  statute  24  Geo.  II.  c.  18)  that  the  cause 
required  such  special  jury.^ 

6.  The  practice  upon  motions  for  a  is  possible  such  may  be  the  case  in 
new  trial  bears  a  general  similarity  some  states.  In  courts  of  justice  of 
in  all  the  states.  The  literature  of  the  peace,  however,  while  no  special 
the"  subject  has  become  quite  volum-  attention  is  paid  to  the  quality,  the 
inous.  See  the  local  works  on  Prac-  manner  of  selecting  the  six  men.  who 
tice,  Bayliss'  New  Trials,  Hayne  on  usually  constitute  this  sort  of  a  jury, 
New  Trials  (western  states),  2  vols.,  is  by  each  party  alternately  strik- 
1912.  ing   off   one    name    from    the    list   of 

7.  Common  juries,  so-called,  are  the  twelve,  eighteen  or  twenty-four,  as 
only  sort  used  in  the  state  and  fed-  the  case  may  b ',  till  six  remain  who 
eral  courts.  So  far  as  we  know  spe-  constitute  the  jury  in  that  court  for 
cial  or  "  struck  "  juries  are  not  now  that  case  only. 

in  use  in  courts  of  record,  though  it 


Chap.  XXIII.]         Of  the  Trial  by  Jury.  583 

A  common  jury  is  one  returned  by  the  sheriff  according 
to  the  directions  of  the  statute  3  Geo.  II.  c.  25,  which  ap- 
points that  the  sheriff  or  officer  shall  not  return  a  separate 
panel  for  every  separate  cause  as  formerly,  but  one  and  the 
same  panel  for  every  cause  to  be  tried  at  the  same  assises 
containing  not  less  than  forty-eight  nor  more  than  seventy- 
two  jurors,  and  that  their  names  being  written  on  tickets 
shall  be  put  into  a  box  or  glass,  and  when  each  cause  is 
called  twelve  of  these  persons,  whose  names  shall  be  first 
drawn  out  of  the  box,  shall  be  sworn  upon  the  jury,  unless 
absent,  challenged,  or  excused,  or  unless  a  previous  view 
of  the  messages,  lands,  or  place  in  question  shall  have 
been  thought  necessary  by  the  court,  in  which  case  six  or 
more  of  the  jurors  returned,  to  be  agreed  on  by  the  parties, 
or  named  by  a  judge  or  other  proper  officer  of  the  court, 
shall  be  appointed  by  special  writ  of  habeas  corpora  or 
distringas  to  have  the  matters  in  question  shown  to  them 
by  two  persons  named  in  the  writ,  and  then  such  of  the 
jury  as  have  had  the  view,  or  so  many  of  them  as  appear, 
shall  be  sworn  on  the  inquest  previous  to  any  other  jurors.* 

As  the  jurors  appear,  when  called,  they  shall  be  sworn, 
unless  challenged  by  either  party.  Challenges  are  of  two 
sorts :  challenges  to  the  array,  and  challenges  to  the  polls. 

Challenges  to  the  array  are  at  once  an  exception  to  the 
whole  panel  ^  in  which  the  jury  are  arrayed  or  set  in  order 
by  the  sheriff  in  his  return,  and  they  may  be  made  upon 
account  of  partiality  or  some  default  in  the  sheriff  or  his 
under-officer  who  arrayed  the  panel.  [359]  And  generally 
speaking,  the  same  reasons  that  before  the  awarding  the 
venire  were  sufficient  to  have  directed  it  to  the  coroners  or 
elisors  will  be  also  sufficient  to  quash  the  array  when  made 
by  a  person  or  officer  of  whose  partiality  there  is  any  toler- 
able ground  of  suspicion.  Also,  though  there  be  no  per- 
sonal objection  against  the  sheriff,  yet  if  he  arrays  the 
panel  at  the  nomination,  or  under  the  direction  of  either 

8.  As  before  stated  this  matter   is  9.  This   sort  of   challenge  still   ex- 

wiiolly   regulated   by   statute   in   this      ista. 
country.     See  the  statutes   and  local 
vorks  on  Practice. 


5S4  Of  the  Trial  by  Jury.  [Book  III. 

party,  this  is  good  cause  of  challonge  to  the  array.  By  the 
policy  of  the  ancient  law,  the  jury  was  to  come  de  vicineto, 
from  the  neighborhood  of  the  vill  or  place  where  the  cause 
of  action  was  laid  in  the  declaration,  and  therefore  some 
of  the  jury  were  obliged  to  be  returned  from  the  hundred 
in  which  such  vill  lay,  and  if  none  were  returned  the  array 
might  be  challenged  for  defect  of  hundredors.  By  statute 
4  &  5  Anne,  c.  6,  this  practice  was  entirely  abolished  upon 
all  civil  actions,  except  upon  penal  statutes,  and  upon  those 
also  by  the  24  Geo.  II.  c.  18,  the  jury  being  now  only  ta 
come  de  corpore  comitatus,  from  the  body  of  the  county  at 
large,^  and  not  de  vicineto,  or  from  the  particular  neighbor- 
hood. [360] 

The  array  by  the  ancient  law  may  also  be  challenged  if  an  alien  be 
party  to  the  suit,  and  upon  a  rule  obtained  by  his  motion  to  the  court 
for  a  jury  de  medicate  linguae  2  such  a  one  be  not  returned  by  the  sheriff, 
pursuant  to  the  statute  28  Edw.  III.  e.  13,  enforced  by  8  Hen.  VI.  c.  29, 
which  enact  that  where  either  party  is  an  alien  born,  the  jury  shall  be 
one  half  denizens  and  the  other  aliens  (if  so  many  be  forthcoming  in 
the  place)  for  the  more  impartial  trial.  But  where  both  parties  are 
aliens  no  partiality  is  to  be  presumed  to  one  more  than  another. 

Challenges  to  the  polls,  in  capita,  are  exceptions  to  par- 
ticular jurors.  [361]  By  the  laws  of  England,  also,  in  the 
times  of  Bracton  and  Fleta,  a  judge  might  be  refused  for 
good  cause;  but  now  the  law  is  otherwise,  and  it  is  held  that 
judges  and  justices  cannot  be  challenged.^ 

Challenges  to  the  polls  are  reduced  to  four  heads :  propter 
honoris  respcctum,  propter  defectum,  propter  affectum,  and 
propter  delictum. 

1.  Propter  honoris  respectum,*  as  if  a  lord  of  parliament 
be  impanelled  on  a  jury  he  may  be  challenged  by  either 
party  or  he  may  challenge  himself. 

2.  Propter  defectum,"*  as  if  a  juryman  be  an  alien  born, 
this  is  defect  of  birth;  if  he  be  a  slave  or  bondman,  this  is 

1.  Such  is  also  the  practice  in  the  provides  in  such  case  for  a  change  of 
states.  venue. 

2.  Of  mixed  tongue.     Not  in  use  in  4.  On  account  of  dignity, 
the  United  States.  5.  On  account  of  defect. 

3.  The  law  in  some  states,  however. 


Chap.  XXIIL]         Of  the  Trial  by  Jury.  585 

defect  of  liberty,  and  he  cannot  be  liher  et  legalis  Jiomo^ 
[362]  Under  the  word  Jwmo  also,  though  a  name  common 
to  both  sexes,  the  female  is,  however,  excluded  propter  de- 
fectum seceus/  except  when  a  widow  feigns  herself  with  child 
in  order  to  exclude  the  next  heir,  and  a  suppositious  birth  is 
suspected  to  be  intended;  then  upon  the  writ  de  ventre  inspi- 
ciendo,^  a  jury  of  women  is  to  be  impanelled  to  try  the  ques- 
tion, whether  with  child  or  not.  But  the  principal  deficiency 
is  defect  of  estate  sufficient  to  qualify  him  to  be  a  juror.  This 
depends  upon  a  variety  of  statutes.  [As  to  which,  see  the 
text] 

3.  Jurors  may  be  challenged  propter  affectum''  for  sus- 
picion of  bias  or  partiality.  [363]  This  may  be  either  a 
principal  challenge  or  to  the  favor.  A  principal  challenge  is 
such  where  the  cause  assigned  carries  with  it  prima  facie 
evident  marks  of  suspicion,  either  of  malice  or  favor,  as 
that  a  juror  is  of  kin  to  either  party  within  the  ninth  de- 
gree; that  he  has  been  arbitrator  on  either  side;  that  he 
has  an  interest  in  the  cause ;  that  there  is  an  action  depend- 
ing between  him  and  the  party;  that  he  has  taken  money 
for  his  verdict;  that  he  has  formerly  been  a  juror  in  the 
same  cause;  that  he  is  the  party's  master,  servant,  coun- 
selor, steward,  or  attorney,  or  of  the  same  society  or  corpo- 
ration with  him  —  all  these  are  principal  causes  of  chal- 
lenge, which,  if  true,  cannot  be  overruled,  for  jurors  must  be 
omni  exceptione  majores.^  Challenges  to  the  favor-  are 
where  the  party  hath  no  principal  challenge,  but  objects 
only  some  probable  circumstances  of  suspicion,  as  acquaint- 
ance and  the  like,  the  validity  of  which  must  be  left  to  the 
determination  of  triors,  w^hose  office  it  is  to  decide  whether 
the  juror  be  favorable  or  unfavorable.  The  triors,  in  case 
the  first  man  called  be  challenged,  are  tAvo  indifferent  per- 
sons named  by  the  court;  and  if  they  try  one  man  and  find 
him  indifferent  he  shall  be  sworn,  and  then  he  and  the  two 
triors  shall  try  the  next,  and  when  another  is  found  indif- 

6.  A  free  and  legal  man.  1.  Above  all   exceptions. 

7.  On  account  of  defect  of  sex.  2.  Both  principal  challenges  and  to 

8.  Concerning  an  examination  for  the  fivor  still  exist  though  not  ai- 
pr'gnancy.  ways  distinguished  by  name. 

9.  On  account  of  partiality. 


586  Of  THE  Trial  BY  JuBY.  [Book  III. 

ferent  and  sworn  the  two  triors  shall  be  superseded,  and 
the  two  first  sworn  on  the  jury  shall  try  the  rest. 

4.  Challenges  propter  delictum-^  are  for  some  crime  or 
misdemeanor  that  affects  the  juror's  credit  and  renders 
him  infamous,  as  for  a  conviction  of  treason,  felony,  per- 
jury, or  conspiracy,  or  if  for  some  infamous  offence  he  hath 
received  judgment  of  the  pillory,  tumbrel,  or  the  like,  or  to 
be  branded,  whipped,  or  stigmatized,  or  if  he  be  outlawed 
or  excommunicated,  or  hath  been  attainted  of  false  verdict, 
praemunire,  or  forgery,  or,  lastly,  if  he  hath  proved  recreant 
when  champion  in  the  trial  by  battle,  and  thereby  hath  lost 
his  liheram  legem.*'  [364]  A  juror  may  himself  be  exam- 
ined on  oath  of  voir  dire,  veritatem  dicere,  with  regard  to 
such  causes  or  challenge  as  are  not  to  his  dishonor  or  dis- 
credit, but  not  with  regard  to  any  crime  or  anything  which 
tends  to  his  disgrace  or  disadvantage. 

Besides  these  challenges,  which  are  exceptions  against 
the  fitness  of  jurors,  and  whereby  they  may  be  excluded  from 
serving,  there  are  also  other  causes  to  be  made  use  of  by 
the  jurors  themselves,  which  are  matter  of  exemption,'^ 
whereby  their  service  is  excused  and  not  excluded,  as  by 
statute  Westm.  2,  13  Edw.  I.  c.  38,  sick  and  decrepit  persons^ 
persons  not  commorant  in  the  county,  and  men  above  seventy 
years  old;  and  by  the  statute  of  7  &  8  W.  III.  c.  32,  infants 
under  twenty-one.  This  exemption  is  also  extended  by  divers 
statutes,  customs,  and  charters  to  physicians  and  other  medi- 
cal persons,  counsel,  attorneys,  officers  of  the  courts,  and  the 
like,  all  of  whom,  if  impanelled,  must  show  their  special  ex- 
emption. Clergymen  are  also  usually  excused,  out  of  favor 
and  respect  to  their  function. 

If  by  means  of  challenges,  or  other  cause,  a  sufficient  num- 
ber of  unexceptionable  jurors  doth  not  appear  at  the  trial, 
either  party  may  pray  a  talcs.  A  tales  is  a  supply  of  such 
men  as  are  summoned  upon  the  first  panel  in  order  to  make 

3.  On  account  of  crime.  4.  This    is    the    constant    practice 

As  to  all  the  above  challenges  the  everywhere    where    the    common    law 

student    will    find    statutory    regula-  trial  by  jury  exists. 

tion.     The  statutes  and  local   works  5.  Always    a    matter    of    statutory 

on    Practice    must    always    be    con-  regulation. 

suited. 


Chap.  XXIII.]         Of  the  Trial  by  Jury.  587 

up  the  deficiency.  For  this  purpose  a  writ  of  decern  tales ^ 
octo  tales,  and  the  like,  was  used  to  be  issued  to  the  sheriff 
at  common  law,  and  must  be  still  so  done  at  a  trial  at  bar 
if  the  jurors  make  default.  But  at  the  assises  or  nisi  prius, 
by  virtue  of  the  statute  35  Hen.  VIII.  c.  6,  and  other  subse- 
quent statutes,  the  judge  is  empowered  at  the  prayer  of 
either  party  to  award  a  tales  de  circumstantihus^  of  persons 
present  in  court,  to  be  joined  to  the  other  jurors  to  try  the 
cause,  who  are  liable,  however,  to  the  same  challenges  as  the 
principal  jurors.  [365]  This  is  usually  done  till  the  legal 
number  of  twelve  be  completed. 

When  a  sufficient  number  of  persons  impanelled,  or  tales- 
men,  appear,  they  are  then  separately  sworn  well  and  truly 
to  try  the  issue  between  the  parties,  and  a  true  verdict  to 
give  according  to  the  evidence,  and  hence  they  are  denomi- 
nated the  jury  (jurata)  and  jurors  (sc.  juratores)  J' 

The  jury  are  now  ready  to  hear  the  merits,  and,  to  fix 
their  attention  the  closer  to  the  facts  which  they  are  im- 
panelled and  sworn  to  try,  the  pleadings  are  opened  to  them 
by  counsel  on  that  side  which  holds  the  affirmative  of  the 
question  in  issue.  For  the  issue  is  said  to  lie,  and  proof 
is  always  first  required  upon  that  side  which  affirms  the 
matter  in  question.^  [366]  The  opening  counsel  briefly 
informs  them  what  has  been  transacted  in  the  court  above, 
the  parties,  the  nature  of  the  action,  the  declaration,  the 
plea,  replication,  and  other  proceedings,  and  lastly,  upon 
what  point  the  issue  is  joined  which  is  there  set  down  to 
be  determined.  The  nature  of  the  case  and  the  evidence 
intended  to  be  produced  are  next  laid  before  them  by 
counsel  also  on  the  same  side;  and  when  their  evidence  is 
gone  through  the  advocate  on  the  other  side  opens  the 
adverse  case  and  supports  it  by  evidence,  and  then  the 
party  which  began  is  heard  by  way  of  reply.®  [367] 

6.  Such  men  from  those  standing  the  general  issue  is  one  of  the  pleas 
around.  This  practice  or  some  modi-  of  the  defendant  in  which  case  the 
fication  thereon  prevails  generally  in  plaintiff  always  opens  and  closes  the 
this  country.     See  the  statutes.  case. 

7.  Here  the  whole  jury  usually  rise  9.  Sometimes  with  us  the  defcnd- 
and  are  sworn  at  once.  ant  makes  his  opening  statement  be- 

8.  This   is   the   general   rule   unless  fore  any  evidence  is  heard. 


588 


Of  the  Trial  bty  Jury. 


[Book  IIL 


Evidence  signifies  that  which  demonstrates,  makes  clear, 
or  ascertains  the  trutli  of  the  very  fact  or  point  in  issue, 
either  on  the  one  side  or  on  the  other,  ^  and  no  evidence 
ought  to  be  admitted  to  any  other  point. 

Evidence  in  the  trial  by  jury  is  of  two  kinds,  either  that 
which  is  given  in  proof  or  that  which  the  jury  may  receive 
by  their  own  private  knowledge.-  The  former,  or  proofs 
(to  which  in  common  speech  the  name  of  evidence  is  usually 
confined),  are  either  written  or  parol,  that  is,  by  word  of 
mouth.  Written  proofs,  or  evidence,  are,  1.  Records,^  and 
2.  Ancient  deeds  of  thirty  years  standing  which  prove  them- 
selves;* but  3.  Modern  deeds,  and  4.  Other  writings,  must 
be  attested  and  verified  by  parol  evidence  of  witnesses. 
[368]  And  the  one  general  rule  that  runs  through  all  the 
doctrine  of  trials  is  this,  that  the  best  [legal]  evidence  the 
nature  of  the  case  will  admit  of  shall  always  be  required, 
if  possible  to  be  had,  but  if  not  possible,  then  the  best 
[legal]  evidence  that  can  be  had  shall  be  allowed.'^     For  if 


1.  The  student  is  especially  referred 
to  the  able  and  exhaustive  work  on 
Evidence  by  Mr.  Chamberlayne. 

2.  Not  allowable.  All  evidence 
must  be  given  in  open  court.  ^ 

3.  Proved  by  the  proper  official  cus- 
todian or  by  properly  certified  copies. 

4.  If  produced  from  the  proper  cus- 
tody. 

6.  No  rule  of  law  is  more  fre- 
quently cited,  and  more  generally 
misconceived,  than  this.  It  is  cer- 
tainly true  when  rightly  understood; 
but  it  is  very  limited  in  its  extent 
and  application.  It  signifies  nothing 
more  than  that,  if  the  best  legal  evi- 
dence cannot  possibly  be  produced,  the 
next  best  legal  evidence  shall  be  ad- 
mitted. Evidence  may  be  divided  in- 
to primary  and  secondary ;  and  the 
secondary  evidence  is  as  accurately 
defined  by  the  law  as  the  primary. 
But  in  general  the  want  of  bet.ter  evi- 
dence can  never  justify  the  admission 
of    hearsay,   or   the   copies   of   copies. 


etc.  Where  there  are  exceptions  to 
general  rules,  these  exceptions  are  as 
much  recognized  by  the  law  as  the 
general  rule;  and  where  boundaries 
and  limits  are  established  by  the  law 
for  every  case  that  can  possibly  oc- 
cur, it  is  immaterial  what  we  call 
the  rule,  and  what  the  exception. 

If  the  subscribing  witness  be  living 
and  within  the  jurisdiction  of  the 
court,  he  must  be  called  to  prove  the 
execution;  or  if  he  cannot  be  found, 
and  that  fact  be  satisfactorily  ex- 
plained, proof  of  his  hand-writing 
will  be  sufficient  evidence  of  the  exe- 
cution. Barnes  v.  Trompowsky,  7  T. 
R.  266.  And  the  witness  of  the  exe- 
cution is  necessary;  acknowledgment 
of  the  party  who  executed  the  deed 
cannot  be  received.  Johnson  v.  Ma- 
son. 1  Ksp.  89.  At  least  only  as  sec- 
ondary evidence.  Call.  Bart.  v.  Dun- 
ning. 4  East,  53.  And  acknowledg- 
ment to  a  subscribing  witness  by  an 
obligor   of   a    bond    that    he    has   exe- 


Chap.  XXIII.]        Of  the  Trial  by  Jury.  589 

it  be  found  that  there  is  any  better  evidence  existing  than 
is  produced,  the  very  not  producing  it  is  a  presumption 
that  it  would  have  detected  some  falsehood  that  at  present 
is  concealed.  Thus,  in  order  to  prove  a  lease  for  years, 
nothing  else  shall  be  admitted  but  the  very  deed  of  lease 
itself,  if  in  being;  but  if  that  be  positively  proved  to  be 
burnt  or  destroyed  (not  relying  on  any  loose  negative,  as 
that  it  cannot  be  found,  or  the  like),  then  an  attested  copy 
may  be  produced,  or  parol  evidence  be  given  of  its  con- 
tents. So,  no  evidence  of  a  discourse  with  another  will  be 
admitted,  but  the  man  himself  must  be  produced;  yet  in 
some  cases  (as  in  proof  of  any  general  customs,  or  matters 
of  common  tradition  or  repute),  the  courts  admit  of  hear- 
say^ evidence,  or  an  account  of  what  persons  deceased  have 
declared  in  'their  lifetime ;  but  such  evidence  will  not  be  re- 
ceived of  any  particular  facts.  So,  too,  books  of  account 
or  shop-books  are  not  allowed  of  themselves  to  be  given  in 
evidence  for  the  ow^ner,  but  a  servant  who  made  the  entry 
may  have  recourse  to  them  to  refresh  his  memory;  and  if 
such  servant  (who  was  accustomed  to  make  those  entries) 
be  dead,  and  his  hand  be  proved,  the  book  may  be  read  in 
evidence.^ 

With  regard  to  parol  evidence,  or  uitncsscs,  it  must  first 
be  remembered  that  there  is  a  process  to  bring  tliem  in  by 
writ  of  subpoena  ad  testificandum,*  which  commands  them, 
laying  aside  all  pretences  and  excuses,  to  appear  at  the 
trial  on  pain  of  100/.  to  be  forfeited  to  the  king,  to  w^hich 

rut<>d     it,     is     sufficient.       Powell    v.  wherever    a    subscribing    witness    ap- 

Blackett,  9  Esp.  87;  and  see  Grellier  pears  to  an  instrument,  note,  etc.,  he 

V.    Xeale,    Peake,    146.      But   a    mere  must    be    called    or    his    absence    ex- 

bvstander  may  not  be  roceived  to  sup-  plained.    See  Higgs  v.  Dixon,  2  Stark, 

ply    the    absence    of    the    subscribing  180;   Breton  v.  Cope,  Peake,  31.     See 

witness  (M'Craw  v.  Gentry,  3  Campb.  Chamberlayne  on   Evidence,   §   464  et 

232),   or  only  as   secondary   evidence,  seq.;  Id.,  §  2574  et  scq. 

.«;ee   the   next   case.     If  "the  apparent  6.  See,  generally,  Chamberlayne  on 

attesting   witness   deny   that   he   saw  Evidence,   §§   464,  2574. 

the   execution,   secondary   evidence   is  7.  See  the  leading  case  of  Price  v. 

admissible:   that  is  to  say,  the  hand-  The   Earl   of   Torrington,    Salk.    285; 

writing   of   the  obligor,   etc..   may   be  1   Smith's   Lead.  Cas.  *390  and   note, 

proved.    Ley  v.  Ballard.  3  Esp.  173  n.  8.  This  is  the  ordinary  subpoena  in 

And,  as  a  general  rule,  it  seems  that  universal  use. 


590  Of  the  Trial  by  Juet.  [Book  III. 

the  statute  5  Eliz.  c.  9,  has  added  a  penalty  of  20/.  to  the 
party  aggrieved,  and  damages  equivalent  to  the  loss  sus- 
tained by  want  of  his  evidence.  [369]  But  no  witness,  un- 
less his  reasonable  expenses  be  tendered  him,  is  bound  to 
appear  at  all;^  nor,  if  he  appears,  is  he  bound  to  give  evi- 
dence till  such  charges  are  actually  paid  him,  except  he  re- 
sides within  the  bills  of  mortality,  and  is  summoned  to  give 
evidence  within  the  same.  This  compulsory  process  to 
bring  in  unwilling  witnesses,  and  the  additional  terrors  of 
an  attachment  in  case  of  disobedience,^  are  of  excellent  use 
in  the  thorough  investigation  of  truth. 

All  witnesses,  of  whatever  religion  ^  or  country,  that  have 
the  use  of  their  reason,  are  to  be  received  and  examined, 
except  such  as  are  infamous  or  such  as  are  interested  in  the 
event  of  the  cause.  All  others  are  competent  witnesses, 
though  the  jury  from  other  circumstances  will  judge  of 
their  credibility.  Infamous  persons  are  such  as  may  be 
challeneged  as  jurors,  propter  delictum^  and  therefore  never 
shall  be  admitted  to  give  evidence  to  inform  that  jury  with 
whom  they  were  too  scandalous  to  associate.  [370]  Inter- 
ested witnesses^  may  be  examined  upon  a  voir  dire,  if  sus- 
pected to  be  secretly  concerned  in  the  event,  or  their  inter- 
est may  be  proved  in  court, —  which  last  is  the  only  method 
of  supporting  an  objection  to  the  former  class,  for  no  man 
is  to  be  examined  to  prove  his  own  infamy.  And  no  coun- 
sel, attorney,  or  other  person  intrusted  with  the  secrets  of 
the  cause  by  the  party  himself,  shall  be  compelled,  or  per- 
haps allowed,  to  give  evidence  of  such  conversation  or  mat- 
ters of  privacy  as  came  to  his  knowledge  by  virtue  of  such 
trust  and  confidence;  but. he  may  be  examined  as  to  mere 
matters  of  fact,  as  the  execution  of  a  deed,  or  the  like, 
which  might  have  come  to  his  knowledge  without  being 
intrusted  in  the  cause.'' 

9.  So  now,  but  the  amount  is  fixed  to  competeticy  on   the  ground   of   in- 

by   statute.  terest  and  to  make  them  extend  solely 

1.  Still  the  practice.  to  the  credibility  of  the  witness.    Con- 

2.  See    the    leading    case    of    Omi-  suit  the  local  statutes. 

chund     V.     Barker,     Willes,     538;     1  4.  This    is   the   well-settled   rule  of 

Smith's   Lead  Cas.   *535.  law  everywhere  both  in  civil  and  crim- 

3.  The  general  tendency  of  modern  inal  cases, 
legislation  is  to  remove  all  objectiona 


Okap.  XXIII.]         Of  the  Trial  by  Jury.  591 

One  witness  (if  credible  [and  believed  by  the  jury] )  is 
sufficient  evidence  to  a  jury  of  any  singe  facts,  though  un- 
doubtedly the  concurrence  of  two  or  more  corroborates  the 
proof.^ 

Positive  proof  is  always  required  where  from  the  nature 
of  the  case  it  appears  it  might  possibly  have  been  had. 
[371]  But  next  to  positive  proof  circumstantial  evidence, 
or  the  doctrine  of  presumptions,  must  take  place;  for  when 
the  fact  itself  cannot  be  demonstratively  evinced,  that 
which  comes  nearest  to  the  proof  of  the  fact  is  the  proof 
of  such  circumstances  which  either  necessarily  or  ivsually 
attend  such  facts,  and  these  are  called  presumptions,  which 
are  only  to  be  relied  upon  till  the  contrary  be  actually 
proved.  Violent  presumption  is  many  times  equal  to  full 
proof,  for  there  those  circumstances  appear  which  neces- 
sarily attend  the  fact.  As  if  a  landlord  sues  for  rent  due 
at  Michaelmas,  1754,  and  the  tenant  cannot  prove  the  pay- 
ment, but  produces  an  acquittance  for  rent  due  at  a  subse- 
quent time,  in  full  of  all  demands,  this  is  a  violent  presump- 
tion of  his  having  paid  the  former  rent,  and  is  equivalent 
to  full  proof;  for  though  the  actual  payment  is  not  proved, 
yet  the  acquittance  in  full  of  all  demands  is  proved,  which 
could  not  be  without  such  payment,  and  it  therefore  in- 
duces so  forcible  a  presumption  that  no  proof  shall  be  ad- 
mitted to  the  contrary.^  Probable  presumption  arising 
from  such  circumstances  as  usually  attend  the  fact  hath 
also  its  due  weight;  as  if,  in  a  suit  for  rent  due  in  1754,  the 
tenant  proves  the  payment  of  the  rent  due  in  1755;  this 
will  prevail  to  exonerate  the  tenant,  unless  it  be  clearly 
shown  that  the  rent  of  1754  was  retained  for  some  special 
reason,  or  that  there  was  some  fraud  or  mistake;  for  other- 

5.  There  are  several  cases  where  Courts,  on  the  other  hand,  limit  the 
more  than  one  witness  is  required,  number  of  witnesses  on  one  point, 
e  g.,  in  treason,  perjury  (both  con-  e.  g.,  character  witnesses  (Chamber- 
sidered  in  Book  4);  in  chancery  to  layne  on  Evidence,  §  3326);  of  ex- 
overcome  a  responsive  answer  re-  perts.  Id.,  §§  1804,  note,  2276,  note, 
quired  to  be  under  oath  (see  vol.  2,  6.  A  receipt  may  be  explained  by 
this  series);  in  divorce  cases  (see  parol  evidence.  Chamberlayne  oa 
local  works  on  Practice),  and  possibly  Evidence,  §  1364,  note  4. 
other  cases. 


592  Of  the  Trial  by  Jury.  [Book  III. 

wise  it  will  be  presumed  to  have  been  paid  before  that  in 
1755,  as  it  is  most  usual  to  receive  first  the  rents  of  longest- 
standing.  Light  or  rash  presumptions  have  no  weight  or 
validity  at  all. 

The  oath  administered  to  the  witness  is  not  only  that 
what  he  deposes  shall  be  true,  but  that  he  shall  also  depose 
the  whole  truth;  so  that  he  is  not  to  conceal  any  part  of  what 
he  knows,  whether  interrogated  particularly  to  that  point 
or  not.  [372]  And  all  this  evidence  is  to  be  given  in  open 
court,  in  the  presence  of  the  parties,  their  attorneys,  the 
counsel,  and  all  by-standers,  and  before  the  judge  and  jury; 
each  party  having  liberty  to  except '^  to  its  competency, 
which  exceptions  are  publicly  stated,  and  by  the  judge  are 
openly  and  publicly  allowed  or  disallowed,  in  the  face  of 
the  country.  And  if,  either  in  his  directions  or  decisions, 
he  mistakes  the  law  by  ignorance,  inadvertence,  or  design, 
the  counsel  on  either  side  may  require  him  publicly  to  seal 
a  bill  of  exceptions,  stating  the  point  wherein  he  is  sup- 
posed to  err;  and  this  he  is  obliged  to  seal  by  statute 
Westm.  2,  13  Ed.  I.  c.  31,  or  if  he  refuses  so  to  do,  the  party 
may  have  a  compulsory  writ  against  him,  commanding  him 
to  seal  it,  if  the  fact  alleged  be  truly  stated;  and  if  he  re- 
turns that  the  fact  is  untruly  stated  when  the  case  is  other- 
wise, an  action  will  lie  against  him  for  making  a  false  re- 
turn. This  bill  of  exceptions  is  in  the  nature  of  an  appeal, 
examinable,  not  in  the  court  out  of  which  the  record  issues 
for  the  trial  at  nisi  prius,  but  in  the  next  immediate  superior 
court,  upon  a  writ  of  error,  after  judgment  given  in  the 
court  below.^  But  a  demurrer  to  evidence  shall  be  deter- 
mined by  the  court  out  of  which  the  record  is  sent.  This 
happens  where  a  record  or  other  matter  is  produced  in  evi- 
dence concerning  the  legal  consequences  of  which  there 
arises  a  doubt  in  law,  in  which  case  the  adverse  party  may  if 

7.  The  word  "  object "  is  now  com-  upon  a  motion  for  a  new  trial.  Its 
monly  used  and  "  except "  to  refer  to  office  is  to  incorporate  into  the  record 
tlie  reservation  of  an  objection  to  the  for  review  those  matters  which  are 
court's  ruling  thereon.  not  part  of  the  common   law  record. 

8.  A  bill  of  exceptions  is  in  the  Consult  local  statutes  and  works  on 
states  usually  settled  after  the  ruling  Practice. 


Cjiap.  XXIII.]         Of  the  Tkial  by  Jury.  593 

he  pleases  demur  to  the  whole  evidence;  which  admits  the 
truth  of  every  fact  that  has  been  alleged,  but  denies  the 
sufficiency  of  them  all  in  point  of  law  to  maintain  or  over- 
throw the  issi^e,  which  draws  the  question  of  law  from  the 
cognizance  of  the  jury  to  be  decided  (as  it  ought)  by  the 
court.  But  neither  these  demurrers  to  evidence®  nor  the 
bills  of  exceptions^  are  at  present  so  much  in, use  as  for- 
merly, since  the  more  frequent  extension  of  the  discretion- 
ary powers  of  the  court  in  granting  a  new  trial,  which  is 
now  very  commonly  had  for  the  misdirection  of  the  judge  at 
nisi  prins.^    [373] 

As  to  such  evidence  as  the  jury  may  have  by  their  private 
knowledge  of  facts,  it  was  an  ancient  doctrine  that  this  had 
as  much  right  to  sway  their  judgment  as  the  written  or 
parol  evidence  which  is  delivered  in  court.  [374]  And 
therefore  it  hath  been  often  held  that  though  no  proofs 
be  produced  on  either  side,  yet  the  jury  might  bring  in  a 
verdict.  For  the  oath  of  the  jurors,  to  find  according  to 
their  evidence,  was  construed  to  be,  to  do  it  according  to 
the  best  of  their  own  knowledge.  But  with  new  trials,  the 
practice  seems  to  have  been  first  introduced,  which  now 
universally  obtains,  that  if  a  juror  knows  anything  of  the 
matter  in  issue,  he  may  be  sworn  as  a  witness  and  give  his 
evidence  publicly  in  court.   [375] 

When  the  evidence  is  gone  through  on  both  sides,  the 
judge,  in  the  presence  of  the  parties,  the  counsel,  and  all 
others,  sums  up  the  whole  to  the  jury,  omitting  all  super- 
fluous circumstances,  observing  wherein  the  main  question 
and  principal  issue  lies,  stating  what  evidence  has  been 
given  to  support  it,  with  such  remarks  as  he  thinks  neces- 
sary for  their  direction,  and  giving  them  his  opinion  in  mat- 
ters of  law  arising  upon  that  evidence.^ 

9.  Still  in  use  in  some  jurisdictions,  voluminous.       See     Hayne     on     New 

liut  the  more  common   practice  is  to  Trials,  2  vols.    (1912);   Bayliss'  New 

move    the   court   to   direct    a    verdict  Trials,    2d    Ed.     (1900).      Still    after 

for  insufRcitncy  of  the  plaintiff's  evi-  the  overruling  of  a  motion  for  a  new 

dence.     Chamberlayne  on  Evidence,  §§  trial,  a  bill  of  exceptions  and  appeal 

140-144  and  notes.  or    writ   of   error    often    follow    as   a 

1.  Bills  of   exceptions   are   in   com-  means  of  review. 

mon  use  in  the  States.  3.  Under   our,  practice   the   counsel 

2.  The  literature   of   new   trials   is      having  the  burden  of  proof  opens  and 

38 


694  Op  the  Trial  by  Jury.  [Book  ITT. 

The  jury,  after  the  proofs  are  summed  up,  unless  tho 
case  be  very  clear,  withdraw  from  the  bar  to  consider  of 
their  verdict;  and,  in  order  to  avoid  intemperance  and 
causeless  delay,  are  to  be  kept  without  meat,  drink,  fire,  or 
candle,  unless  by  permission  of  the  judge,  till  they  are  all 
unanimously  agreed.  If  our  juries  eat  or  drink  at  all,  or 
have  any  eatables  about  them,  without  consent  of  the  court, 
and  before  verdict,  it  is  finable;  and  if  they  do  so  at  his 
charge  for  whom  they  afterwards  find,  it  will  set  aside  the 
verdict.  Also  if  they  speak  with  either  of  the  parties  or 
their  agents,  after  they  are  gone  from  the  bar,  or  if  they 
receive  any  fresh  evidence  in  private,  or  if,  to  prevent  dis- 
putes, they  cast  lots  for  whom  they  shall  find,  any  of  these 
circumstances  will  entirely  vitiate  the  verdict.*   [376] 

When  they  are  all  unanimously  agreed,  the  jury  return 
back  to  the  bar,  and,  before  they  deliver  their  verdict,  the 
plaintiff  is  bound  to  appear  in  court,  by  himself,  attorney, 
or  counsel,  in  order  to  answer  the  amercement  to  which  by 
the  old  law  he  is  liable,  in  case  he  fails  in  his  suit,  as  a 
punishment  for  his  false  claim.  The  amercement  is  dis- 
used, but  the  form  still  continues;  and  if  the  plaintiff  does 
not  appear,  no  verdict  can  be  given,  but  the  plaintiff  is  said 
to  be  nonsuit,  non  sequitur  clamorem  suum.^  Therefore  it 
is  usual  for  a  plaintiff,  when  he  or  his  counsel  perceives  that 
he  has  not  given  evidence  sufficient  to  maintain  his  issue,  to 
be  voluntarily  nonsuited,  or  withdraw  himself;  whereupon 
the  crier  is  ordered  to  call  the  plaintif,  and  if  neither  he  nor 
anybody  for  him  appears,  he  is  nonsuited,  the  jurors  are  dis- 
charged, the  action  is  at  an  end,  and  the  defendant  shall 

closes  the  argument  to  the  jury  and  tice   and   one   that  often   defeats  the 

the    charge    or    instructions    of    the  ends  of  justice.     The  judge  should  he 

court  is  not  given  till  arguments  of  allowed   to  sum   up  and   required   to 

counsel  are  finished.     In  many  states  instruct  the  jury, 

there  are  statutes  prohibiting  the  ex-  4.  See  works   on  New   Trials   cited 

pression  of  any  opinion  or   comment  above;     also    Chamberlayne    on    Evi- 

on  the  facts  by  the  judge  and  often  it  dence,  §  306  et  seq. 

is  required  that  his  so-called  instruc-  5.  He  does  not  follow  up  his  com- 

tions   be  in   writing;    in   other   words  plaint.     We  do   not  understand   that 

the  judge  is  substantially  reduced  to  the  plaintiff  will  now  be  nonsuited  for 

tlie  position  of  a  moderator.     In  our  nonappearance, 
judgment  this  is  a  most  vicious  prac- 


Chap.  XXIII.]         Of  the  Trial  by  Jury.  595 

recover  his  costs.  The  reason  of  this  practice  is  that  a 
nonsuit  is  more  eligible  for  the  plaintiff  than  a  verdict 
against  him,  for  after  a  nonsuit,  which  is  only  a  default,  he 
may  commence  the  same  suit  again  for  the  same  cause  of 
action;  but  after  a  verdict  had,  and  judgment  consequent 
thereupon,  he  is  [unless  the  same  is  reversed]  forever 
barred  from  attacking  the  defendant  upon  the  same  ground 
of  complaint.  [377]  But  in  case  the  plaintiff  appears,  the 
jury  by  their  foreman  deliver  in  their  verdict. 

A  verdict,  vere  dictum,  is  either  privy  or  public.  A  privy 
verdict  is  when  the  judge  hath  left  or  adjourned  the  court; 
and  the  jury,  being  agreed,  in  order  to  be  delivered  from 
their  confinement,  obtain  leave  to  give  their  verdict  privily 
to  the  judge  out  of  court,  which  privy  verdict  is  of  no  force 
unless  afterwards  affirmed  by  a  public  verdict  given  openly 
in  court,  wherein  the  jury  may,  if  they  please,  vary  from  the 
privy  verdict.^  So  that  the  privy  verdict  is  indeed  a  mere 
nullity;  and  yet  it  is  a  dangerous  practice,  allowing  time 
for  the  parties  to  tamper  with  the  jury,  and  therefore  very 
seldom  indulged.  But  the  only  effectual  and  legal  verdict 
is  the  public  verdict,  in  which  they  openly  declare  to  have 
found  the  issue  for  the  plaintiff  or  for  the  defendant;  and 
if  for  the  plaintiff,  they  assess  the  damages  also  sustained 
by  the  plaintiff  in  consequence  of  the  injury  upon  which 
the  action  is  brought. 

Sometimes,  if  there  arises  in  the  case  any  difficult  matter 
of  law,  the  jury,  for  the  sake  of  better  information  and  to 
avoid  the  danger  of  having  their  verdict  attainted,  will  find 
a  special  verdict,^  which  is  grounded  on  the  statute  of 
Westm.  2,  13  Edw.  I.  c.  30,  §  2.  And  herein  they  state  the 
naked  facts  as  they  find  them  to  be  proved,  and  pray  the 
advice  of  the  court  thereon,  concluding  conditionally,  that 
if  upon  the  whole  matter  the  court  should  be  of  opinion  that 
the  plaintiff  had  cause  of  action,  they  then  find  for  the 
plaintiff;   if  otherwise,  then  for  the  defendant.     This  is 

6.  Or  sealed  verdict  by  consent  of  upon  certain  questions  submitted  to 
counsel.  them,    as   well   as   to   find   a   general 

7.  By  statute  in  some  states  the  verdict.  Consult  local  statutes  and 
jury  may  be  required  to  find  specially  works  on  Practice. 


596  Of  the  Tbial  by  Jury.  [Book  III. 

entered  at  length  on  the  record,  and  afterwards  argued  and 
determined  in  the  court  at  Westminster  from  whence  the 
issue  came  to  be  tried. 

Another  method  of  finding  a  species  of  special  verdict  i«; 
when  the  jury  find  a  verdict  generally  for  the  plaintiff,  hut 
subject,  nevertheless,  to  the  opinion  of  the  judge  or  the 
court  above,  on  a  special  case  stated  by  the  counsel  on  both 
sides  with  regard  to  a  matter  of  lav.%  which  has  this  advan- 
tage over  a  special  verdict,  that  it  is  attended  with  much 
less  expense  and  obtains  a  much  speedier  decision,  and 
postea  (of  which  .in  the  next  chapter)  being  stayed  in  the 
hands  of  the  officer  of  nisi  prius  till  the  question  is  deter- 
mined, and  the  verdict  is  then  entered  for  the  plaintiff  or 
defendant,  as  the  case  may  happen.*  [378]  But,  as  nothing 
appears  upon  the  record  but  the  general  verdict,  the  par- 
ties are  precluded  hereby  from  the  benefit  of  a  writ  of  error, 
if  dissatisfied  with  the  judgment  of  the  court  or  judge  upon 
the  point  of  law.  But  in  both  these  instances  the  jury  may, 
if  thej'^  think  proper,  take  upon  themselves  to  determine,  at 
their  own  hazard,  the  complicated  question  of  fact  and  law; 
and,  without  either  special  verdict  or  special  case,  may 
find  a  verdict  absolutely  either  for  the  plaintiff  or  de- 
fendant. 

When  the  jury  have  delivered  in  their  verdict,  and  it 
is  recorded  in  court,  they  are  then  discharged.  And  so 
ends  the  trial  by  jury.  The  principal  defects  of  the  system 
seem  to  be, 

1.  The  want  of  a  complete  discovery  by  the  oath  of  tho 
parties.  This  each  of  them  is  now  entitled  to  have,  by 
going  through  the  expense  and  circuity  of  a  court  of  equity, 
and  therefore  it  is  sometimes  had  by  consent,  even  in  the 
courts  of  law.»   [382] 

2.  A  second  defect  is  the  want  of  a  compulsive  power 
for  the  production  of  books  and  papers  belonging  to  the 
parties.^  In  the  hands  of  third  persons  they  can  genenilly 
be  obtained  by  rule  of  court,  or  by  adding  a  clause  of  requi- 

8.  See  statutes  and  local  works  on  party  may  be  called  and  examined  as 
Practice.  a   witness.     Consult   local   statutes. 

9.  In    many    of    the    states    either  1.  See  local  statutes. 


Chap.  XXIIL]         Of  the  Trial  by  Jury.  597 

sition  to  the  writ  of  siihpoena,  which  is  then  called  a  sub- 
poena duces  tecum.- 

3.  Another  want  is  that  of  powers  to  examine  witnesses 
abroad,  and  to  receive  their  depositions  in  writing  where 
the  witnesses  reside,  and  especially  when  the  cause  of  ac- 
tion arises  in  a  foreign  country.  [383]  To  which  may  be 
added  the  power  of  examining  witnesses  that  are  aged,  or 
going  abroad,  upon  interrogatories  de  bene  esse,  to  be  read 
in  evidence  if  the  trial  should  be  deferred  till  after  their 
death  or  departure,  but  otherwise  to  be  totally  suppressed. 
Both  these  are  now  very  frequently  effected  by  mutual  con- 
sent if  the  parties  are  open  and  candid,  and  they  may  also 
be  done  indirectly  at  any  time,  through  the  channel  of  a 
court  of  equity;  but  such  a  practice  has  never  yet  been 
directly  adopted  as  the  rule  of  a  court  of  law.^  Yet  where 
the  cause  of  action  arises  in  India,  and  a  suit  is  brought 
thereupon  in  any  of  the  king's  courts  at  Westminster,  the 
court  may  issue  a  commission  to  examine  witnesses  upon 
the  spot  and  transmit  the  depositions  to  England. 

4.  The  courts  of  law  will  [in  case  of  local  prejudice  on 
the  part  of  the  jurors]  in  transitory  actions  very  often 
change  the  venue,  or  county  wherein  the  cause  is  to  be  tried ; 
but  in  local  actions,  though  they  sometimes  do  it  indirectly 
and  by  mutual  consent,  yet  to  effect  it  directly  and  abso- 
lutely, the  parties  are  driven  to  a  court  of  equity,  where, 
upon  making  out  a  proper  case,  it  is  done  upon  the  ground 
of  being  necessary  to  a  fair,  impartial,  and  satisfactory 
trial.*   [384] 

2.  Under  penalty  bring  with  you.  suit  tlie  local  statutes  and  books  on 
This  writ  is  in  common  use.  Practice. 

3.!  These     defects     have     in     many  4.  This  may  now  be  done  in  a  court 

states  been  remedied  by  statutes.  Con-      of   law.      Tidd    (8th   Ed.),    655.      See 

local  statutes  and  works  on  Practice. 


598  Of  Judgment  and  Its  Incidents.       [Book  III, 

CHAPTER  XXIV. 
OF  judgment  and  its  incidents. 

If  the  issue  be  an  issue  of  fact,  whatever  is  done  subse- 
quent to  the  joining  of  issue  and  awarding  the  trial,  it  is 
entered  on  record,  and  is  called  a  postea.  [386]  The  sub- 
stance of  which  is,  that  postea,  afterioards,  the  said  plain- 
tiff and  defendant  appeared  by  their  attorneys  at  the  place 
of  trial,  and  a  jury,  being  sworn,  found  such  a  verdict,  or 
that  the  plaintiff,  after  the  jury  sworn,  made  default  and 
did  not  prosecute  his  suit,  or  as  the  case  may  happen.  This 
is  added  to  the  roll,  which  is  now  returned  to  the  court 
from  which  it  was  sent,  and  the  history  of  the  cause  from 
the  time  it  was  carried  out  is  thus  continued  by  the  postea.^ 

Next  follows,  sixthly,  the  judgment  of  the  court  upon 
what  has  previously  passed,  both  the  matter  of  law  and 
matter  of  fact  being  now  fully  weighed  and  adjusted. 
Judgment  may,  however,  for  certain  causes  be  suspended, 
or  finally  arrested,  for  it  cannot  be  entered  till  the  next 
term  after  trial  had,  and  that  upon  notice  to  the  other 
party. ^  [387]  So  that  if  any  defect  of  justice  happened 
at  the  trial  by  surprise,  inadvertence,  or  misconduct,  the 
party  may  have  relief  in  the  court  above  by  obtaining  a 
new  trial;  or  if,  notwithstanding  the  issue  of  fact  be  regu- 
larly decided,  it  appears  that  the  complaint  was  either  not 
actionable  in  itself  or  not  made  with  sufficient  precision  and 
accuracy,  the  party  may  supersede  it  by  arresting  or  staying 
the  judgment. 

1.  Causes  of  suspending  the  judgment  by  granting  a  new 
trial  are  at  present  wholly  extrinsic,  arising  from  matter 
foreign  to  or  dehors  the  record.  Of  this  sort  are  want  of 
notice  of  trial,  or  any  flagrant  misbehavior  of  the  party 

1.  Under  our  practice  no  postea  in  2.  Entered  of  course  with  us,  unless 

the  sense  of   the  author   is   required,  stayed  by  motion  for  new  trial  or  in 

although,  of   course,   all   the   findings  arrest   of   judgment   which   are,   as   a 

appear  on  file  or  in  the  entries  on  the  rule,  considered  as  one  motion.     See 

books  of  records.  local  works  on  Practice. 


Chap.  XXIV.]     Of  Judgment  and  Its  Incidents.  599 

prevailing  towards  the  jury  whicli  may  have  influenced 
their  verdict,  or  any  gross  misbehavior  of  the  jury  among 
themselves;  also,  if  it  appears  by  the  judge's  report,  certi- 
fied by  the  court,  that  the  jury  have  brought  in  a  verdict 
without  or  contrary  to  evidence,  so  that  he  is  reasonably 
dissatisfied  therewith,  or  if  they  have  given  exorbitant  dam- 
ages, or  if  the  judge  himself  has  misdirected  the  jury,  so 
that  they  found  an  unjustifiable  verdict, —  for  these  and 
other  reasons  of  the  like  kind  it  is  the  practice  of  the  court 
to  award  a  new),  or  second,  trial.  But  if  two  juries  agree  in 
the  same  or  a  similar  verdict,  a  third  trial  is  seldom 
awarded;  for  the  law  will  not  readily  suppose  that  the  ver- 
dict of  any  one  subsequent  jury  can  countervail  the  oaths 
of  the  two  preceding  ones. 

A  new  trial  is  a  rehearing  of  the  cause  before  another 
jury,  but  with  as  little  prejudice  to  either  party  as  if  it 
had  never  been  heard  before.  [391]  No  advantage  is  taken 
of  the  former  verdict  on  the  one  side,  or  the  rule  of  court  for 
aw^arding  such  second  trial  on  the  other. 

A  sufficient  ground  must,  however,  be  laid  before  the 
court  to  satisfy  them  that  it  is  necessary  to  justice  that  the 
cause  should  be  farther  considered.  If  the  matter  be  such 
as  did  not  or  could  not  appear  to  the  judge  who  presided  at 
nisi  prius,  it  is  disclosed  to  the  court  by  affidavit;^  if  it 
arises  from  what  passed  at  the  trial,  it  is  taken  from  the 
judge's  information,  who  usually  makes  a  special  and 
minute  report  of  the  evidence.  Counsel  are  heard,  on  both 
sides  to  impeach  or  establish  the  verdict,  and  the  court  give 
their  reasons  at  large  why  a  new  examination  ought  or 
ought  not  to  be  allowed.  [392]  Nor  do  the  courts  lend  too 
easy  an  ear  to  every  application  for  a  review  of  the  former 
verdict.  They  must  be  satisfied  that  there  are  strong  prob- 
able grounds  to  suppose  that  the  merits  have  not  been  fairly 
and  fully  discussed,  and  that  the  decision  is  not  agreeable 
to  the  justice  and  truth  of  the  case.  A  new  trial  is  not 
granted  where  the  value  is  too  inconsiderable  to  merit  a 

3.  See  preceding  notes.  The  evi-  proceedings  on  the  motion  for  a  new 
dence  in  support  of  a  new  trial  is  trial  are  included  in  the  record,  when 
usually   presented   by   affidavit.      The      necessary,  by  a  bill  of  exceptions. 


coo  Of  Judomext  and  Its  Incidents.       [Book  III. 

second  examination.  It  is  not  granted  upon  nice  and  for- 
mal objections  which  do  not  go  to  the  real  merits.  It  is 
not  granted  in  cases  of  strict  right  or  summum  jus,  where 
the  rigorous  exaction  of  extreme  legal  justice  is  hardly 
reconcilable  to  conscience.  Nor  is  it  granted  where  the 
scales  of  evidence  hang  nearly  equal;  that  which  leans 
against  the  former  verdict  ought  always  very  strongly  to 
preponderate. 

In  granting  such  farther  trial  (which  is  matter  of  sound 
discretion)  the  court  has  also  an  opportunity,  which  it  sel- 
dom fails  to  improve,  of  supplying  those  defects  in  this 
mode  of  trial  which  were  stated  in  the  preceding  chapter, 
by  laying  the  party  applying  under  all  such  equitable  terms 
as  his  antagonist  shall  desire  and  mutually  offer  to  comply 
with,  such  as  the  discovery  of  soipe  facts  upon  oath,  the 
admission  of  others  not  intended  to  be  litigated,  the  pro- 
duction of  deeds,  books,  and  papers,  the  examination  of  wit- 
nesses, infirm,  or  going  beyond  sea,  and  the  like.  And  the 
delay  and  expense  of  this  proceeding  are  so  small  and  tri- 
fling that  it  seldom  can  be  moved  for  to  gain  time  or  to 
gratify  humor.  The  motion  must  be  made  within  the  first 
four  days  of  the  next  succeeding  term,  within  which  term 
it  is  usually  heard  and  decided. 

2.  Arrests  of  judgment  arise  from  intrinsic  causes  appear- 
ing upon  the  face  of  the  record.  Of  this  kind  are,  first, 
where  the  declaration  varies  totally  from  the  original  writ 
[or  process],  as  where  the  writ  is  in  debt  or  detinue,  and  the 
plaintiff  declares  in  an  action  on  the  case  for  an  assumpsit. 
Also,  secondly,  where  the  verdict  materially  differs  from 
the  pleadings  and  issue  thereon,  as  if  in  an  action  for  words 
it  is  laid  in  the  declaration  that  the  defendant  said,  '*  the 
plaintiff  is  a  bankrupt,"  and  the  verdict  finds  specially  that 
he  said,  '*  the  plaintiff  icill  he  a  bankrupt."*  Or,  thirdly, 
if  the  case  laid  in  the  declaration  is  not  sufficient  in  point 
of  law  to  found  an  action  upon.     And  this  is  an  invariable 

4.  If  a  verdict   is  taken  generally,  general  verdict  of  guilty  upon  an  in- 

with   entire  damages,   judgment   may  dietraent  consisting  of  several  counts, 

be  arrested    if  any   one  count   in   the  and    any   one  count    is   good,   that   is 

declaration  is  bad;   but   if  there  is  a  held  to  be  sufficient.     Doug.  730. 


Chap.  XXIV.]     Of  Judgment  and  Its  Ixcidents.  601 

rule  with  regard  to  arrests  of  judgment  upon  matter  of  law, 
''  that  whatever  is  alleged  in  arrest  of  judgment  must  be 
such  matter  as  would  upon  demurrer  have  been  sufficient 
to  overturn  the  action  or  plea."  [394]  As  if,  on  an  action 
for  slander  in  calling  the  plaintiff  a  Jew,  the  defendant 
denies  the  words,  and  issue  is  joined  thereon.  Now,  if  a 
verdict  be  found  for  the  plaintiff  that  the  words  were 
actually  spoken,  whereby  the  fact  is  established,  still  the 
defendant  may  move  in  arrest  of  judgment  that  to  call  a 
man  a  Jew  is  not  actionable;  and  if  the  court  be  of  that 
opinion  the  judgment  shall  be  arrested  and  never  entered 
for  the  plaintiff.  But  the  rule  will  not  hold  e  converso,^ 
^'  that  everything  that  may  be  alleged  as  cause  of  demurrer 
will  be  good  in  arrest  of  judgment;  "  for  if  a  declaration 
or  plea  omits  to  state  some  particular  circumstance,  with- 
out proving  of  which  at  the  trial  it  is  impossible  to  support 
the  action  or  defence,  this  omission  shall  be  aided  by  a  ver- 
dict, as  if,  in  an  action  of  trespass,  the  declaration  doth  not 
allege  that  the  trespass  was  committed  on  any  certain  day, 
though  this  defect  might  be  good  cause  to  demur  to  the 
declaration  or  plea,  yet  if  the  adverse  party  omits  to  take 
advantage  of  such  omission  in  due  time,  but  takes  issue, 
and  has  a  verdict  against  him,  this  exception  cannot  after 
verdict  be  moved  in  arrest  of  judgment.  For  the  verdict 
ascertains  those  facts  which  before,  from  the  inaccuracy 
of  the  pleadings,  might  be  dubious,  since  the  law  will  not 
suppose  that  a  jury  under  the  inspection  of  a  judge  would 
find  a  verdict  for  the  plaintiff  or  defendant  unless  he  had 
proved  those  circumstances  without  which  his  general  alle- 
gation is  defective.  Exceptions,  therefore,  that  are  moved 
in  arrest  of  judgment  must  be  much  more  material  and 
glaring  than  such  as  will  maintain  a  demurrer,  or,  in  other 
words,  many  inaccuracies  and  omissions,  which  would  be 
fatal  if  early  observed,  are  cured  by  a  subsequent  verdict, 
and  not  suffered  in  the  last  stage  of  a  cause  to  unravel  the 
whole  proceedings.  But  if  the  thing  omitted  be  essential  to 
the  action  or  defence,  as  if  the  plaintiff  does  not  merely 
state  his  title  in  a  defective  manner,  but  sets  forth  a  title 

5.  To  the  tontrarv. 


602  Of  Judgment  and  Its  Incidents.       [Book  III. 

that  is  totally  defective  in  itself,  or  if  to  an  action  of  debt 
the  defendant  pleads  not  guilty  instead  of  nil  debet,  these 
cannot  be  cured  by  a  verdict  for  the  plaintiff  in  the  first 
case,  or  for  the  defendant  in  the  second.   [395] 

If,  by  the  misconduct  or  inadvertence  of  the  pleaders, 
the  issue  be  joined  on  a  fact  totally  immaterial,  or  insuffi- 
cient to  determine  the  right,  so  that  the  court  upon  the 
finding  cannot  know  for  whom  judgment  ought  to  be  given, 
as  if,  in  an  action  on  the  case  in  assumpsit  against  an  execu- 
tor, he  pleads  that  he  himself  (instead  of  the  testator) 
made  no  such  promise.  In  this  case  the  court  will  after  ver- 
dict award  a  repleader  quod  partes  replacitant,^  unless  it 
appears  from  the  whole  record  that  nothing  material  can 
possibly  be  pleaded  in  any  shape  whatsoever,  and  then  a 
pleader  would  be  fruitless.  And  whenever  a  repleader  is 
granted,  the  pleadings  must  begin  de  novo  at  that  stage  of 
them,  whether  it  be  the  plea,  replication,  or  rejoinder,  &c., 
wherein  there  appears  to  have  been  the  first  defect  or  devia- 
tion from  the  regular  course,' 

If  judgment  is  not  by  some  of  these  means  arrested  within 
the  first  four  days  of  the  next  term  after  the  trial,  it  is  then 
to  be  entered  on  the  roll  or  record.  Judgments  are  the  sen- 
tence of  the  law,  pronounced  by  the  court  upon  the  matter 
contained  in  the  record,  and  are  of  four  sorts :  First,  where 
the  facts  are  confessed  by  the  parties  and  the  law  deter- 
mined by  the  court,  as  in  case  of  judgment  upon  demurrer; 
secondly,  where  the  law  is  admitted  by  the  parties  and  the 
facts  disputed,  as  in  case  of  judgment  on  a  verdict;  thirdly, 
where  both  the  fact  and  the  law  arising  thereon  are  ad- 
mitted by  the  defendant,  which  is  the  case  of  judgments 
by  confession  or  default;  or,  lastly,  where  the  plaintiff  is 
convinced  that  either  fact,  or  law,  or  both,  are  insufficient 
to  support  his  action,  and  therefore  abandons  or  withdraws 
his  prosecution,  which  is  the  case  in  judgments  upon  a 
nonsuit  or  retraxit.  [396] 

The  judgment,  though  pronounced  or  awarded  by  the 

6.  That  the  parties  replead.  nients   and   jeofails.      See   Rev.    Stat. 

7.  In  probably  all  tlie  states  there  111.,  ch.  7.  Consult  local  statutes  an«i 
«re   now    liberal    statutes    of-  amend-     books  on  Practice. 


CiiAP.  XXIV.]     Of  Judgment  and  Its  Incidents.  603 

judges,  is  not  their  determination  or  sentence,  but  the  deter- 
mination and  sentence  of  the  law.  Therefore  the  style  of 
the  judgment  is,  not  that  it  is  decreed  or  resolved  by  the 
court,  for  then  the  judgment  might  appear  to  be  their  own, 
but  **  it  is  considered,"  consideratum  est  per  curiam,^  that 
the  plaintiff  do  recover  his  damages,  his  debt,  his  posses- 
sion, and  the  like,  which  implies  that  the  judgment  is  none 
of  their  own,  but  the  act  of  law,  pronounced  and  declared 
by  the  court  after  due  deliberation  and  inquiry. 

All  these  species  of  judgments  are  either  interlocutory 
or  final.  Interlocutory  judgments  are  such  as  are  given  in 
the  middle  of  a  cause  upon  some  plea,  proceeding,  or  de- 
fault, which  is  only  intermediate  and  does  not  finally  deter- 
mine or  complete  the  suit.  Of  this  nature  are  all  judgments 
for  the  plaintiff  upon  pleas  in  abatement  of  the  suit  or  action, 
in  which  it  is  considered  by  the  court  that  the  defendant  do 
answer  over,  respondeat  ouster,  that  is,  put  in  a  more  sub- 
stantial plea.  [397]  But  the  interlocutory  judgments  most 
usually  spoken  of  are  those  incomplete  judgments,  whereby 
the  right  of  the  plaintiff  is  indeed  established,  but  the 
quantum  of  damages  sustained  by  him  is  not  ascertained, 
which  is  a  matter  that  cannot  be  done  without  the  interven- 
tion of  a  jury.  This  can  only  happen  where  the  plaintiff 
recovers,  for  when  judgment  is  given  for  the  defendant  it  is 
always  complete  as  well  as  final.  And  this  happens,  in  the 
first  place,  where  the  defendant  suffers  judgment  to  go 
against  him  by  default,  or  nihil  dicit;^  as  if  he  puts  in  no 
plea  at  all  to  the  plaintiff's  declaration,  by  confession  or 
cognovit  actionem,^  where  he  acknowledges  the  plaiutift^'s  de- 
mand to  be  just;  or  by  non  sum  informatus,^  when  the  de- 
fendant's attorney  declares  he  has  no  instruction  to  say 
anything  in  answer  to  the  plaintiff  or  in  defence  of  his 
client,  which  is  a  species  of  judgment  by  default.  If  these, 
or  any  of  them,  happen  in  actions  where  the  specific  thing 
sued  for  is  recovered,  as  in  actions  of  debt  for  a  sum  certain, 
the  judgment  is  absolutely  complete.  And  therefore  it  is 
very  usual,  in  order  to  strengthen  a  creditor's  security,  for 

8.  It  is  considered  by  the  court.  1.  He  confesses  the  action. 

9.  He  says  nothing.  2.  I  am  not  informed. 


604  Of  Judgment  and  Its  Incidents.       [Book  III. 

the  debtor  to  execute  a  warrant  of  attorney  to  some  attorney 
named  by  the  creditor,  empowering  him  to  confess  a  judg- 
ment^ by  either  of  the  ways  just  now  mentioned  (by  nihil 
dicit,  cognovit  actionem,  or  non  sum.  informatus)  in  an  action 
of  debt  to  be  brought  by  the  creditor  against  the  debtor  for 
the  specific  sum  due;  which  judgment,  when  confessed,  is 
absolutely  complete  and  binding,  provided  the  same  (as  is 
also  required  in  all  other  judgments)  be  regularly  docquetted, 
that  is,  abstracted  and  entered  in  a  book,  according  to  the 
directions  of  statute  4  &  5  W.  &  M.  c.  20.  [398]  But  where 
damages  are  to  be  recovered,  a  jury  must  be  called  in  to 
assess  them,  unless  the  defendant,  to  save  charges,  will  con- 
fess the  whole  damages  laid  in  the  declaration;  otherwise 
the  entry  of  the  judgment  is  '*  that  the  plaintiff  ought  to 
recover  his  damages  (indefinitely),  but  because  the  court 
know  not  what  damages  the  said  plaintiff  hath  sustained, 
therefore  the  sheriff  is  commanded,  that  by  the  oaths  of 
twelve  honest  and  lawful  men  he  inquire  into  the  said  dam- 
ages, and  return  such  inquisition  into  court, ' '  This  process 
is  called  a  writ  of  inquiry,  in  the  execution  of  which  the 
sheriff  sits  as  judge,  and  tries  by  a  jury,  subject  to  nearly 
the  same  laws  and  conditions  as  the  trial  by  jury  at  nisi  prins, 
what  damages  the  plaintiff  hath  really  sustained;*  and  when 
their  verdict  is  given,  which  must  assess  some  damages,  the 
sheriff  returns  the  inquisition,  which  is  entered  upon  the  roll 
in  manner  of  a  postea,  and  thereupon  it  is  considered  that 
the  plaintiff  do  recover  the  exact  suui  of  the  damages  so 
assessed.  In  like  manner,  when  a  demurrer  is  determined 
for  the  plaintiff  upon  an  action  wherein  damages  are  recov- 
ered, the  judgment  is  also  incomplete  without  the  aid  of  a 
writ  of  inquiry. 
Final  judgments  are  such  as  at  once  put  an  end  to  the 

3.  A  very  common  practice  now.  usually  provided  by  statute.  See  the 
The  authority  is  often  made  a  part  local  statutes  and  books  on  Practice, 
of  the  security,  i.  e.,  written  or  printed  Where  a  case  is  tried  before  a  jury, 
on  the  same  paper.  the  jury,  if   they   find  for   the   plain-- 

4.  This  practice  may  still  prevail  tiff,  usually  assess  his  damages  in  the 
in    some   of    the    states,   but   a   more  verdict. 

fiimple  and  expeditious  proceeding  is 


Chap.  XXIV.]     Of  Judgmeistt  and  Its  Incidents.  605 

action  by  declaring  tbat  the  plaintiff  has  either  entitled 
himself,  or  has  not,  to  recover  the  remedy  he  sues  for. 

In  which  case,  if  the  judgment  be  for  the  plaintiff,  it  is  also  considered 
that  the  defendant  be  either  amerced  for  his  wilful  delay  of  justice  in 
not  immediately  obeying  the  king's  writ  by  rendering  the  plaintiff  his 
due,  or  be  taken  up,  capitur,  till  he  pays  a  fine  to  the  king  for  the  public 
misdemeanor  which  is  coupled  with  the  private  injury  in  all  cases  of 
force,  etc.  But  if  judgment  be  for  the  defendant,  then  in  case  of  fraud 
and  deceit  to  the  court,  or  malicious  or  vexatious  suits,  the  plaintiff  may 
also  be  fined:  but  in  most  cases  it  is  only  considered  that  he  and  his 
pledges  of  prosecuting  be  (nominally)  amerced  for  his  false  claim,  pro 
falso  clamore  suo,  and  that  the  defendant  may  go  thereof  without  a  day, 
eat  inde  sine  die,  that  is,  without  any  farther  continuance  or  adjournment, 
the  king's  writ  commanding  his  attendance  being  now  fully  satisfied 
and  his  innocence  publicly  cleared.  [399] 

Thus  much  for  judgments,  to  which  costs  are  a  necessary 
appendage,  it  being  now  [by  statute]  as  well  the  maxim  of 
ours  as  of  the  civil  law,  that  ^^  victus  victori  in  expensis  con- 
demnandus  est;-'^  though  the  common  law  did  not  pro- 
fessedly allow  any,  the  amercement  of  the  vanquished  party 
being  his  only  punishment.  These  cases  on  both  sides  are 
taxed  and  moderated  by  the  prothonotary,  or  other  proper 
officer  of  the  court. 

After  judgment  is  entered  execution  will  immediately 
follow,  unless  the  party  condemned  thinks  himself  unjustly 
aggrieved  by  any  of  these  proceedings,  and  then  he  has  his 
remedy  to  reverse  them  by  several  writs  in  the  nature  of 
appeals,  which  we  shall  consider  in  the  succeeding  chapter. 
[401] 

5.  This  is,  in  a  small  way,  a  repe-      of  the  costs,  when  allowed,  and  how 
tition    of    the    maxim    that    "  to    the      taxed  are  regulated  by  statute, 
victor  belong  the  spoils."  The  amount 


606  Op  Appeals.  Book  III. 

CHAPTER  XXV. 

OF  PROCEEDINGS  IN  THE  NATURE  OF  APPEALS. 

Proceedings  in  the  nature  of  appeals  from  the  proceed- 
ings of  the  king's  courts  of  law  are  principally  four.  [402] 

I.  A  writ  of  attaint,  which  lieth  to  inquire  whether  a  jury  of  tu-elve 
men  gave  a  false  verdict,  that  so  the  judgment  following  thereupon  may 
be  reversed;  and  this  must  be  brought  in  the  lifetime  of  him  for  whom 
the  verdict  was  given,  and  of  two  at  least  of  the  jurors  who  gave  it. 
[Obsolete.]  The  jury  who  are  to  try  this  false  verdict  must  be  twenty- 
four,  and  are  called  the  grand  jury.  He  that  brings  the  attaint  can 
give  no  other  evidence  to  the  grand  jury  than  what  was  originally  given 
to  the  petit.  But  those  against  whom  it  is  brought  are  allowed,  in  affirm- 
ance of  the  first  verdict,  to  produce  new  matter,  because  the  petit  jury 
may  have  formed  their  verdict  upon  evidence  of  their  own  knowledge 
which  never  appeared  in  court.  [404] 

II.  The  -writ  ef  deceit,  or  action  on  the  case  in  nature  of  It,  may  be 
brought  in  the  Court  of  Common  Pleas  to  reverse  a  judgment  there  had 
by  fraud  or  collusion  in  a  real  action  whereby  lands  and  tenements  have 
been  recovered  to  the  prejudice  of  him  that  hath  right.  [405]    [Obsolete.] 

III.  An  audita  querela  is  where  a  defendant,  against 
whom  judgment  is  recovered  and  who  is  therefore  in  danger 
of  execution,  or  perhaps  actually  in  execution,  may  be  re- 
lieved upon  good  matter  of  discharge  which  has  happened 
since  the  judgment;  as  if  the  plaintiff  hath  given  him  a 
general  release,  or  if  the  defendant  hath  paid  the  debt  to  the 
plaintiff  without  procuring  satisfaction  to  be  entered  on  the 
record.  In  these  and  the  like  cases  wherein  the  defendant 
hath  good  matter  to  plead,  but  hath  had  no  opportunity  of 
pleading  it  (either  at  the  beginning  of  the  suit  or  puis  darrein, 
continuance,^  which  must  always  be  before  judgment),  an 
audita  querela  lies,  in  the  nature  of  a  bill  in  equity,  to  be 
relieved  against  the  oppression  of  the  plaintiff.  It  is  a  writ 
directed  to  the  court  stating  that  the  complaint  of  the  de- 
fendant hath  been  heard,  audita  querela  defendentis,^  and 

1.  Since  the  last  continuance.  2.  The  complaint  of  the  defendant 

having  been  heard. 


CjiiP.  XXV.]  Of  Appeals.  607 

then  setting  out  the  matter  of  the  complaint,  it  at  length 
enjoins  the  court  to  call  the  parties  before  them,  and,  having 
heard  their  allegations  and  proofs,  to  cause  justice  to  be  done 
between  them.  It  also  lies  for  bail  when  judgment  is  ob- 
tained against  them  by  scire  facias  to  answer  the  debt  of  their 
principal,  and  it  happens  afterwards  that  the  original  judg- 
ment against  their  principal  is  reversed;  for  here  the  bail, 
after  judgment  had  against  them,  have  no  opportunity  to 
plead  this  special  matter,  and  therefore  they  shall  have  re- 
dress by  audita  querela.  But  the  indulgence  now  shown  by 
the  courts  in  granting  a  summary  relief  upon  motion,^  in 
cases  of  such  evident  oppression,  has  almost  rendered  use- 
less the  writ  of  audita  querela,  and  driven  it  quite  out  of 
practice.  [406] 

IV.  But,  fourthly,  the  principal  method  of  redress  for 
erroneous  judgments  in  the  king 's  court  of  record  is  by  writ 
of  error  to  some  superior  court  of  appeal. 

A  writ  of  errror  lies  for  some  supposed  mistake  in  the 
proceedings  of  a  court  of  record;  for  to  amend  errors  in  a 
base  court,  not  of  record,  a  writ  of  false  judgment  lies.  The 
writ  of  error  only  lies  upon  matter  of  law  arising  upon  the 
face  of  the  proceedings;  so  that  no  evidence  is  required  to 
substantiate  or  support  it,  there  being  no  method  of  revers- 
ing an  error  in  the  determination  of  facts,  but  by  an  attaint 
or  a  new  trial,  to  correct  the  mistakes  of  the  former  verdict. 

When  once  the  record  was  made  up,  it  was  formerly  held 
that  by  the  common  law  no  amendment  could  be  permitted, 
unless  within  the  very  term  in  which  the  judicial  act  so 
recorded  w^as  done;  for  during  the  term  the  record  is  in  the 
breast  of  the  court,  but  afterwards  it  admitted  of  no  altera- 
tion. But  now  the  courts  are  become  more  liberal,  and, 
where  justice  requires  it,  will  allow  of  amendments  at  any 
time  while  the  suit  is  depending,  notwithstanding  the  record 
be  made  up  and  the  term  be  past.  For  they  at  present 
consider  the  proceedings  as  in  fieri,  till  judgment  is  given, 
and  therefore  that,  till  then,  they  have  power  to  permit 
amendments  by  the  common  law^;  but  when  judgment  is 

3.  Special  motion  supported  by  affi- 
davit. 


608  Of  Appeals.  Book  III. 

once  given  and  enrolled,*  no  amendment  is  permitted  in  any 
subsequent  term.^  [407]  Mistakes  are  also  effectually 
helped  by  the  statutes  of  amendment  and  jeofails,*^  so  called 
because  when  a  pleader  perceives  any  slip  in  the  form  of  his 
proceedings,  and  acknowledges  such  error  {jeo  faile),  he  is 
at  liberty  by  those  statutes  to  amend  it;  which  amendment 
is  seldom  actually  made,  but  the  benefit  of  the  acts  is  at- 
tained by  the  courts  overlooking  the  exception.  These  stat- 
utes are  many  in  number,  and  by  them  all  trifling  exceptions 
are  so  thoroughly  guarded  against  that  writs  of  error  can- 
not now  be  maintained  but  for  some  material  mistake 
assigned. 

If  a  writ  of  error'  be  brought  to  reverse  any  judgment 
of  an  inferior  court  of  record,  where  the  damages  are  less 
than  ten  pounds,  or  if  it  is  brought  to  reverse  the  judgment 
of  any  superior  court  after  verdict,  he  that  brings  the  writ, 
or  that  is  plaintiff  in  error,  must  (except  in  some  peculiar 
cases)  find  substantial  pledges  of  prosecution  or  bail,  to 
prevent  delaj^s  by  frivolous  pretences  to  appeal,  and  for 
securing  payment  of  costs  and  damages,  which  are  now 
payable  by  the  vanquished  party  in  all,  except  in  a  few 
particular  instances.  [411] 

Each  court  of  appeal,  in  their  respective  stages,  may, 
upon  hearing  the  matter  of  law  in  which  the  error  is  as- 
signed, reverse  or  affirm  the  judgment  of  the  inferior  courts, 
but  none  of  them  are  final  save  only  the  House  of  Peers,  to 
whose  judicial  decisions  all  other  tribunals  must  therefore 
submit  and  conform  their  own. 

4.  Enrollment  in  the  sense  here  used  6.  See  Rev.  Stat.  111.,  eh.  7,  and 
is  no  longer  necessary.  ante,  p.  *454,  note. 

5.  Where  the  judgment  has  been  7.  The  ordinary  method  of  review 
entered  and  the  term  ended,  without  in  an  appellate  jurisdiction  of  the 
any  stay  order  on  a  motion  for  a  new  judgment  of  an  inferior  court  is  by 
trial,  there  can  be  no  amendment  of  an  appeal  or  writ  of  error,  the  latter 
tlio  record  unless  the  minute  books,  of  which  is  a  new  suit  begun  in  the 
entries   or   files   contain   matter   sufS-  appellate  court,   while   the  former   is 

cifut    to    serve    as    a    basis    for    th«      prayed  and  allowed  in  the  court  be- 
amendment.  low. 


Os^sp.  XX VI.]  Of  Execution.  600 


CHAPTER  XXVI. 

OF    EXECUTION. 

If  the  regular  judgment  of  the  court,  after  the  decisions 
•of  the  suit,  be  not  suspended,  superseded,  or  reversed  by 
one  or  other  of  the  methods  mentioned  in  the  two  preceding 
chapters,  the  next  and  last  step  is  the  execution  of  that 
judgment,  or  putting  the  sentence  of  the  law  in  force.  [412] 
This  is  performed  in  different  manners,  according  to  the 
nature  of  the  action  upon  which  it  is  founded,  and  of  the 
judgment  which  is  had  or  recovered. 

If  the  plaintiff  recovers  in  an  action,  reaP  or  mixed, 
whereby  the  seisin  or  possession  of  land  is  awarded  to  him, 
the  writ  of  execution  shall  be  an  habere  facias  seisinam,  or 
writ  of  seisin  of  a  freehold,  or  an  hahere  facias  possessionem, 
or  writ  of  possession  of  a  chattel  interest.  These  are  writs 
directed  to  the  sheriff  of  the  county,  commanding  him  to  give 
actual  possession  to  the  plaintiff  of  the  land  so  recovered,  in 
the  execution  of  which  the  sheriff  may  take  with  him  the  posse 
€omitatus,  or  power  of  the  county;  and  may  justify  breaking 
open  doors,  if  the  possession  be  not  quietly  delivered.  But 
if  it  be  peaceably  yielded  up,  the  delivery  of  a  twig,  a  turf, 
or  the  ring  of  the  door,  in  the  name  of  seisin,  is  sufficient 
execution  of  the  writ. 

In  other  actions,  where  the  judgment  is  that  something 
in  special  be  done  or  rendered  by  the  defendant,  then,  in 
order  to  compel  him  so  to  do,  and  to  see  the  judgment 
executed,  a  special  writ  of  execution  issues  to  the  sheriff 
according  to  the  nature  of  the  case.  [413]  Upon  a  replevin 
the  writ  of  execution  is  the  writ  de  retorno  habendo,-  and 
if  the  distress  be  eloigned  the  defendant  shall  have  a  capias 
in  withernam;^  but  on  the  plaintiff's  tendering  the  damages 
and  submitting  to  a  fine,  the  process  in  icithernam  shall  be 
stayed.  In  detinue,  after  judgment,  the  plaintiff  shall  have 
a  distringas,  to  compel  the  defendant  to  deliver  the  goods, 

1.  Real  actions  are  obsolete.  3.  Ste  2  Bouvier  Law.  Diet.  With- 

2.  For  having  a  return.  ernam. 

39  "*.  ^^         .  .-t 


610  Of  Execution.  [Book  III. 

by  repeated  distresses  of  his  chattels;  or  else  a  scire  fadias^ 
against  any  third  person  in  whose  hands  they  may  happen 
to  be,  to  show  cause  why  they  should  not  be  delivered.  And 
if  the  defendant  still  continues  obstinate,  then  (if  the  judg- 
ment hath  been  by  default  or  on  demurrer)  the  sheriff  shall 
summon  an  inquest  to  ascertain  the  value  of  the  goods  and 
the  plaintiff's  damages,  which  (being  either  so  assessed,  or 
by  the  verdict  in  case  of  an  issue)  shall  be  levied  on  tho 
person  or  goods  of  the  defendant. 

Executions  in  actions  where  money  only  is  recovered,  as 
a  debt  or  damages  (and  not  any  specific  chattel),  are  of  five 
sorts;  either  against  the  body  of  the  defendant  or  against 
his  goods  and  chattels,  or  against  his  goods  and  the  profits 
of  his  lands,  or  against  his  goods  and  the  possession  of  his 
lands,  or  against  all  three,  his  body,  lands,  and  goods.  [414] 

1.  The  first  of  these  species  of  execution  is  by  writ  of 
capias  ad  satisfaciendum,''  which  addition  distinguishes  it 
from  the  former  capias  ad  respondendum,  which  lies  to  com- 
pel an  appearance  at  the  beginning  of  a  suit.  And,  properly 
speaking,  this  cannot  be  sued  out  against  any  but  such  as 
were  liable  to  be  taken  upon  the  former  capias.  The  intent 
of  it  is,  to  imprison  the  body  of  the  debtor  till  satisfaction 
be  made  for  the  debt,  costs,  and  damages;  it  therefore  doth 
not  lie  against  any  privileged  persons,  peers,  or  members  of 
parliament,  nor  against  executors  or  administrators,  nor 
against  such  other  persons  as  could  not  be  originally  held  to 
bail.  And  Sir  Edward  Coke  also  gives  us  a  singular  in- 
stance, where  a  defendant  in  14  Edw.  III.  was  discharged 
from  a  capias,  because  he  was  of  so  advanced  an  age,  quod 
paenam  imprisonamenti  suhire  non  protest.^     If  an  action 

4.  In    the    states    besides   writs   of  writ    for    enforcing   the    payment   of 

possession,  the  ordinary  writs  of  exe-  money  judgments;  and,  as  a  rule,  the 

cution  are:    (1)  The  ca.  sa.  or  capias  statutes   authorize   the    levy   on   and 

ad  respondendum  which   issues  on   a  sale    of    personal    and    in    default    of 

judgment  for  damages  in  actions  ex  personal,  of  real  property  under  this 

delicto  and  in  special  cases  of  actions  writ.     For  the  proceedings  and  prac- 

ea  contractu   accompanied   by   fraud,  tice  upon  such  levy  and  scales,  see  the 

as  has  been  already  explained.    As  to  local  statutes  and  books  on  Practice, 

this  writ,  see  the  local  statutes  and  5.  Because    he    cannot    endure    im- 

works  of  Practice.      (2)   The  writ  of  prisonment. 
ft.  fa.  or  fieri  facias  is  the  common 


Chap.  XXVI.]  Ojf  Execution.  .     611 

be  brought  against  an  husband  and  wife  for  the  debt  of  the 
wife  ,when  sole,  and  the  plaintiff  recovers  judgment,  the 
capias  shall  issue  to  take  both  husband  and  wife  in  execution; 
but  if  the  action  was  originally  brought  against  herself  when 
sole,  and  pending  the  suit  she  marries,  the  capias  shall  be 
awarded  against  her  only,  and  not  against  her  husband.  Yet, 
if  judgment  be  recovered  against  an  husband  and  wife  for  the 
contract,  nay,  even  for  the  personal  misbehavior  of  the  wife 
during  her  coverture,  the  capias  shall  issue  against  the  hus- 
band only. 

When  a  man  is  once  taken  in  execution  upon  this  writ, 
no  other  process  can  be  sued  out  against  his  lands  or  goods. 
Only  by  statute  21  Jac.  I.  c.  24,  if  the  defendant  dies  while 
charged  in  execution  upon  this  writ,  the  plaintiff  may,  after 
his  death,  sue  out  a  new  execution  against  his  lands,  goods, 
or  chattels.  The  writ  is  directed  to  the  sheriff,  command- 
ing him  to  take  the  body  of  the  defendant  and  have  him  at 
Westminster  on  a  day  therein  named,  to  make  the  plaintiff 
satisfaction  for  his  demand.  And  if  he  does  not  then  make 
satisfaction,  he  must  remain  in  custody  till  he  does.  This 
writ  may  be  sued  out,  as  may  all  other  executory  process, 
for  costs  against  a  plaintiff  as  well  as  a  defendant,  when 
judgment  is  had  against  him. 

When  a  defendant  is  once  in  custody  upon  this  process,  he 
is  to  be  kept  in  arcta  et  salva  custodia;^  and  if  he  be  after- 
wards seen  at  large,  it  is  an  escape,  and  the  plaintiff  may 
have  an  action  thereupon  against  the  sheriff  for  his  whole 
debt.  Escapes  are  either  voluntary  or  negligent.  Volun- 
tary are  such  as  are  by  the  express  consent  of  the  keeper; 
after  which  he  never  can  retake  his  prisoner  again  (though 
the  plaintiff  may  retake  him  at  any  time),  but  the  sheriff 
must  answer  for  the  debt.  Negligent  escapes  are  where  the 
prisoner  escapes  without  his  keeper 's  knowledge  or  consent, 
and  then  upon  fresh  pursuit  the  defendant  may  be  r-etaken, 
and  the  sheriff  shall  be  excused  if  he  has  him  again  before 
any  action  brought  against  himself  for  the  escape.  [416] 
A  rescue  of  a  prisoner  in  execution,  either  going  to  gaol  or 
in  goal,  or  a  breach  of  prison,  will  not  excuse  the  sheriff 

6.  In  close  and  safe  custody. 


612      '  Of  Execution.  [Book  III. 

from  being  guilty  of  and  answering  for  the  escape;  for  lie 
ought  to  have  sufficient  force  to  keep  him,  since  he'^iay 
command  the  power  of  the  county. 

If  a  capias  ad  satisfaciendum  is  sued  out,  -and  a  non  est 
inventus  is  returned  thereon,  the  plaintiff  may  sue  out  a 
process  against  the  bail,  if  any  w^ere  given;  who  stipulated 
in  this  triple  alternative,  that  the  defendant  should,  if  con- 
demned in  the  suit,  satisfy  the  plaintiff  his  debt  and  costs, 
or  that  he  should  surrender  himself  a  prisoner,  or  that  they 
would  pay  it  for  him.  As  therefore  the  two  former 
branches  of  the  alternative  are  neither  of  them  complied 
with,  the  latter  must  immediately  take  place.  In  order  to 
which  a  writ  of-  scire  facias  may  be  sued  out  against  the 
bail,  commanding  them  to  show  cause  why  the  plaintiff 
should  not  have  execution  against  them  for  his  debt  and 
damages ;  and  on  such  writ,  if  they  show  no  sufficient  cause, 
or  the  defendant  does  not  surrender  himself  on  the  day  of 
the  return,  or  of  showing  cause  (for  afterwards  is  not  suffi- 
cient), the  plaintiff  may  have  judgment  against  the  bail 
and  take  out  a  writ  of  capias  ad  satisfaciendum^  or  other 
process  of  execution  against  them.  [417] 

2.  The  next  species  of  execution  is  against  the  goods  and 
chattels  of  the  defendant,  and  is  called  a  writ  of  fieri  facias, 
from  the  words  in  it  where  the  sheriff  is  commanded,  quod 
fieri  facias  de  honis,^  that  Jie  cause  to  be  made  of  the  goods 
and  chattels  of  the  defendant  the  sum"  or  debt  recovered. 
This  lies  as  well  against  privileged  persons,  peers,  &c.,  as 
other  common  persons,  and  against  executors  or  adminis- 
trators with  regard  to  the  goods  of  the ,  deceased.  The 
sheriff  may  not  break  open  any  outer  doors  to  execute  either 
this  or  the  former  writ,  but  must  enter  peaceably,  and  may 
then  break  open  any  inner  door  belonging  to  the  defendant, 
in  order  to  take  the  goods.  And  he  may  sell  the  goods  and 
chattels* (even  an  estate  for  years,  which  is  the  chattel  real) 
of  the  defendant  till  he  has  raised  enough  to  satisfy  the 
judgment  and  costs;  first  paying  the  landlord  of  the  prem- 
ises upon  which  the  goods  are  found  the  arrears  of  rent 

7.  Capias   for   satisfsietion    [of   the  8.  Tliat  he  make  of  the  goods.     See 

judgment].  note  above. 


CiiAr.  XXVI.J  Op  Execution.  613 

then  due,  not  exceeding  one  year's  rent  in  the  Avhole.  If 
part  only  of  the  debt  be  levied  on  a  fieri  facias,  the  plaintiff 
may  have  a  capias  ad  satisfaciendum  for  the  residue. 

3.  A  third  species  of  execution  is  by  writ  of  lerari  facias  [obsolete], 
which  affects  a  man's  goods  and  the  profits  of  his  lands,  by  commanding 
the  sheriff  to  levy  the  plaintiff's  debt  on  the  lands  and  goods  of  the  de- 
fendant; whereby  the  sheriff  may  seize  all  his  goods,  and  receive  the 
rents  and  profits  of  his  lands  till  satisfaction  be  made  to  the  plaintiff. 
Little  use  is  now  made  of  this  writ,  the  remedy  by  elegit,  which  takes 
possession  of  the  lands  themselves,  being  much  more  effectual.  [418] 

4.  The  fourth  species  of  execution  is  by  the  writ  of  elegit,^  which  is  a 
judicial  writ  given  by  the  statute  Westm.  2,  13  Edw.  I.  c.  18,  either  upon 
a  judgment  for  a  debt  or  damages,  or  upon  the  forfeiture  of  a  recogni- 
zance taken  in  the  king's  court.  By  the  common  law  a  man  oould  only 
have  satisfaction  of  goods,  chattels,  and  the  present  profits  of  lands,  by 
the  two  last  mentioned  writs  oi  fieri  facias  or  levari  facias;  buit  not  the 
possession  of  the  lands  themselves,  which  was  a  natural  consequence  of 
the  feodal  principles,  which  prohibited  the  alienation,  and  of  course  the 
incumbering,  of  the  fief  with  the  debts  of  the  owner.  And  when  the 
restriction  of  alienation  began  to  wear  away,  the  consequence  still  con- 
tinued, and  no  creditor  could  take  the  possession  of  lands,  but  only  levy 
the  growing  profits,  so  that  if  the  defendant  aliened  his  lands,  the  plain- 
tiff was  ousted  of  his  remedJ^  The  statute  therefore  granted  this  writ 
(called  an  elegit,  because  it  is  In  the  choice  or  election  of  the  plaintiff 
whether  he  will  sue  out  this  writ  or  one  of  the  former),  by  which  the 
defendant's  goods  and  chattels  are  not  sold,  but  only  appraised;  and  all 
of  them  (except  oxen  and  beasts  of  the  plough)  are  delivered  to  the 
plaintiff,  at  such  reasonable  appraisement  and  price,  in  part  of  satisfac- 
tion of  his  debt.  If  the  goods  are  not  sufficient,  then  the  moiety  or  one 
half  of  his  freehold  lands,  which  he  had  at  the  time  of  the  judgment 
given,  whether  held  in  his  own  name  or  by  any  other  trust  for  him, 
are  a.\sfo  to  be  delivered  to  the  plaintiff  to  hold,  till  out  of  the  rents 
and  profits  thereof  the  debt  be  levied,  or  till  the  defendant's  interest  be 
expired.  [419]  During  this  period  the  plaintiff  is  called  tenant  by  elegit. 
This  execution,  or  seizing  of  lands  by  elegit,  is  of  so  high  a  nature  that 
after  it  the  body  of  the  defendant  cannot  be  taken.  But  if  execution 
can  only  be  had  of  the  goods,  because  there  are  no  lands,  and  such 
goods  are  not  sufficient  to  pay  the  debt,  a  capias  ad  satisfaciendum  may 
then  be  had  after  the  elegit;  for  such  elegit  is  in  this  case  no  more  in 
effect  than  a  fieri  facias.  So  that  body  and  goods  may  be  taken  in  execu- 
tion, or  land  and  goods,  but  not  body  and  land  too,  upon  any  judgment 

9.  Not  in  general  use  in  the  United 
States,  tliough  possibly  it  may  still 
be  found  to  exist  in  one  or  two  states. 


614  Of  Execution.  [Book  III. 

between  subject  and  subject  in  the  course  of  the  common  law.  [420] 
But, 

5.  Upon  some  prosecutions  giyen  by  statute,  as  in  the  case  of  recogni- 
zances or  debts  acknowledged  on  statutes  merchant  or  statutes  staple  i 

(pursuant  to  the  statutes  13  Edw.  I.  de  mercatoribus,  and  27  Edw.  III.  c. 
■9),  upon  forfeiture  of  these  the  body,  lands,  and  goods  may  all  be  taken 
at  once  In  execution  to  compel  the  payment  of  the  debt.  The  process 
hereon  is  usually  called  an  extent,  or  extendi  facias,  because  the  sheriff 
is  to  cause  the  lands,  etc.,  to  be  appraised  to  their  full  extended  value 
before  he  delivers  them  to  the  plaintiff,  that  it  may  be  certainly  known 
how  soon  the  debt  will  be  satisfied. 

Judgment  between  subject  and  subject  related,  even  at 
common  law,  no  farther  back  than  the  first  day  of  the  term 
in  which  they  were  recovered,-  in. respect  of  the  lands  of 
the  debtor,  and  did  not  bind  his  goods  and  chattels  but 
from  the  date  of  the  writ  of  execution;  and  now  by  the 
statute  of  frauds,  29  Car.  II.  c.  3,  the  judgment  shall  not 
bind  the  land  in  the  hands  of  a  bona  fide  purchaser,  but  only 
from  the  day  of  actually  signing  the  same,  which  is  directed 
by  the  statute  to  be  punctually  entered  on  the  record;  nor 
shall  the  writ  of  execution  bind  the  goods  in  the  hands  of  a 
stranger  or  the  purchaser,  but  only  from  the  actual  delivery 
of  the  writ  to  the  sheriff  or  other  officer,  who  is  therefore 
ordered  to  endorse  on  the  back  of  it  the  day  of  his  receiving 
the  same.  [421] 

These  are  the  methods  which  the  law  of  England  has 
pointed  out  for  the  execution  of  judgments;  and  when  the 
plaintiff's  demand  is  satisfied,  either  by  the  voluntary  pay- 
ment of  the  defendant  or  by  this  compulsory  process,  or 
otherwise,  satisfaction  ought  to  be  entered  on  the  record, 
that  the  defendant  may  not  be  liable  to  be  hereafter 
harassed  a  second  time  on  the  same  account.  But  all  these 
writs  of  execution  must  be  sued  out  within  a  year  and  a 
day  after  the  judgment  is  entered,  otherwise  the  court  con- 
cludes prima  facie  that  the  judgment  is  satisfied  and  ex- 

1.  Not  in  use  in  this  country.  that  a  judgment  relates  back   to  the 

2.  The  reason  for  this  relation  was  first  day  of  terra,  but  the  student 
that  originally  the  term  of  court  was  should  consult  the  statutes  upon  the 
only  one  day.     When  not  changed  by  subject. 

statute   it   is   probably   still   the   rule 


Chap.  XXVL]  Of  Execution.  615 

tinct;  yet,  however,  it  will  grant  a  writ  of  scire  facias  in 
pursuance  of  statute  Westm.  2,  13  Edw.  I.  c.  45,  for  the  de- 
fendant to  show  cause  why  the  judgment  should  not  be 
revived  and  execution  had  against  him,  to  which  the  defend- 
ant may  plead  such  matter  as  he  has  to  allege,  in  order  to 
show  why  process  of  execution  should  not  be  issued ;  or  the 
plaintiff  may  still  bring  an  action  of  debt,  founded  on  this 
dormant  judgment,  which  was  the  only  method  of  revival 
allowed  by  the  common  law.^ 

3.  Still  the  law  where  not  changed 
by  statute. 


CI  6  Pboceedings  IN  Equity.  [Book  III. 


CHAPTER  XXVII. 

OF  PKOCEEDINGS  IN   THE   COURTS  OF  EQUITY. 

The  same  jurisdiction  is  exercised  and  the  same  system 
of  redress  pursued  in  the  Equity  Court  of  the  Exchequer 
as  in  the  Court  of  Chancery;  with  a  distinction,  however,  as 
to  some  few  matters  peculiar  to  each  tribunal  and  in  which 
the  other  cannot  interfere.  [426]  And  as  to  those  peculiar 
to  the  Chancery:  — 

1.  Upon  the  abolition  of  the  Court  of  Wards  the  care  which  the  crown 
was  bound  to  take  as  guardian  of  its  infant  tenants  was  totally  extin- 
guished in  every  feodal  view,  but  resulted  to  the  liing  in  his  Court  of 
Chancery  together  with  the  general  protection  of  all  other  infants  in 
the  kingdom.  [427]  When,  therefore,  a  fatherless  child  has  no  other 
guardljija,  the  Court  of  Chancery  has  a  right  to  appoint  one.^  In  this 
and  from  all  proceedings  relative  thereto  an  appeal  lies  to  the  House 
of  Lords.  The  Court  of  Exchequer  can  only  appoint  a  guardian  ad  litem 
to  manage  the  defence  of  the  infant  if  a  suit  be  commenced  against  him, — 
a  power  which  is  incident  to  the  jurisdiction  of  every  court  of  justice; 
but  when  the  interest  of  a  minor  comes  before  the  court  judicially  in 
the  progress  of  a  cause,  or  upon  a  bill  for  that  purpose  filed,  either 
tribunal  indiscriminately  will  take  oare  of  the  property  of  the  infant. 

•2.  As  to  idiots  and  lunatics,  the  king  himself  used  formerly  to  commit 
the  custody  of  them  to  proper  committees  in  every  particular  case;  but 
now,  to  avoid  solicitations  and  the  very  shadow  of  undue  partiality,  a 
warrant  is  issued  by  the  king  under  his  royal  sign  manual  to  the  Chan- 
cellor or  Keeper  of  his  Seal  to  perform  this  office  for  him;  and  if  he  acts 
improperly  in  granting  such  custodies,  the  complaint  must  be  made  tO' 
the  king  himself  in  council.^  But  the  previous  proceedings  on  the  com-- 
mission,  to  inquire  whether  or  no  the  party  be  an  idiot  or  a  lunatic, 
are  on  the  law  side  of  the  Court  of  Chancery,  and  can  only  be  redressed 
(if  erroneous)  by  writ  of  error  in  the  regular  course  of  law. 

3.  Tiie  king,  as  parens  patriae,  has  the  general  superintendence  of  all 
charities,  which  he  exercises  by  the  keeper  of  his  conscience,  the  Chan- 
cellor. And  therefore  whenever  it  is  necessary  the  Attorney-General,  at 
the  relation  of  some  informant  (who  is  usually  called  the  relator),  files  ev 
officio  an  information  in  the  Court  of  Chancery  to  have  the  charity  prop- 

1.  In  this  country  this  jurisdiction  2.  In  the  United  States  this  juris- 

is  usually  by  statute  conferred  upon  diction  is  usually  exercised  by  court* 

probate    courts,    or    other    courts    of  of  probata  or  otlier  courts  of  similar 

fiimilar  jurisdiction.  jurisdiction. 


Chap.  XXVIL]       Proceedings  in  Equity.  '  C17 

«rlv  established.  By  statute  also  43  Eliz.  c.  4,  authority  is  given  to  the 
Lord  Chancellor  or  Lord  Keeper  and  to  the  Chancellor  of  the  Duchy  of 
Lancaster,  respectively,  to  grant  commissions  under  their  several  seals 
to  inquire  into  any  abuses  of  charitable  donations  and  rectify  the  same 
by  decree,  which  may  be  reviewed  in  the  respective  courts  of  the  several 
chancellors  upon  exceptions  taken  thereto.  [428] 

4.  By  the  several  statutes  relating  to  bankrupts  a  summary  jurisdic- 
tion is  given  to  the  Chancellor  in  many  matters  consequential  or  pre- 
vious to  the  commissions  thereby  directed  to  be  issued. 

Let  us  next  take  a  brief  but  comprehensive  view  of  the 
general  nature  of  equity  as  now  understood  and  practised 
in  our  several  courts  of  judicature.  [429] 

Equity,  then,  in  its  true  and  genuine  meaning,  is  the  soul 
and  spirit  of  all  law;  positive  law  is  construed,  and  rational 
law  is  made  by  it.  In  this,  equity  is  synonymous  to  justice; 
in  that,  to  the  true  sense  and  sound  interpretation  of  the 
rule.  But  the  very  terms  of  a  court  of  equity  and  a  court 
of  law,  as  contrasted  to  each  other,  are  apt  to  confound  and* 
mislead  us;  as  if  the  one  judged  without  equity,  and  the 
other  was  not  bound  by  any  law.  Whereas  every  definition 
or  illustration  to  be  met  with  which  now  draws  a  line  be- 
tween the  two  jurisdictions,  by  setting  law  and  equity  in 
opposition  to  each  other,  will  be  found  either  totally  errone- 
ous or  erroneous  to  a  certain  degree.  [430] 

1.  Thus  in  the  first  place  it  is  said  that  it  is  the  business 
of  a  court  of  equity  in  England  to  abate  the  rigor  of  the 
common  law.  But  no  such  power  is  contended  for.  In  all 
cases  of  positive  law  the  courts  of  equity,  as  well  as  the 
courts  of  law,  must  say  with  Ulpian,  '^hoc  quidem  perquam 
durum  est,  sed  ita  lex  scripta  est."^ 

2.  It  is  said  that  a  court  of  equity  determines  according 
to  the  spirit  of  the  rule,  and  not  according  to  the  strictness 
of  the  letter.  But  so  also  does  a  court  of  law.  Both,  for 
instance,  are  equally  bound,  and  equally  profess,  to  in- 
terpret statutes  according  to  the  true  intent  of  the  legisla- 
ture. There  is  not  a  single  rule  of  interpreting  laws, 
whether  equitably  or  strictly,  that  is  not  equally  used  by 

3.  This  indeed  is  very  liard,  but  so 
t!;e  law  is  written. 


618  •  Proceedings  in  Equity.  [Book  III. 

the  judges  in  the  courts  both  of  law  and  equity,  the  con- 
struction must  in  both  be  the  same;  or,  if  they  differ,  it  is 
only  as  one  court  of  law  may  also  happen  to  differ  from 
another.  [431]  Each  endeavors  to  fix  and  adopt  the  true 
sense  of  the  law  in  question;  neither  can  enlarge,  diminish, 
or  alter  that  sense  in  a  single  title. 

3.  Again,  it  hath  been  said  that  fraud,  accident,  and  trust 
are  the  proper  and  peculiar  objects  of  a  court  of  equity. 
But  every  kind  of  fraud  is  equally  cognizable  and  equally 
adverted  to  in  a  court  of  law,  and  some  frauds  are  cogniz- 
able only  there:  as  fraud  in  obtaining  a  devise  of  lands, 
which  is  always  sent  out  of  the  equity  courts,  to  be  there 
determined.  Many  accidents  are  also  supplied  in  a  court 
of  law,  as  loss  of  deeds,  mistakes  in  receipts  or  accounts, 
wrong  payments,  deaths  which  make  it  impossible  to  per- 
form a  condition  literally,  and  a  multitude  of  other  contin- 
.gencies;  and  many  cannot  be  relieved  even  in  a  court  of 
equity,  as  if  by  accident  a  recovery  is  ill  suffered,  a  devise 
ill  executed,  a  contingent  remainder  destroyed,  or  a  power 
of  leasing  omitted  in  a  family  settlement.  A  technical 
trust,  indeed,  created  by  the  limitation  of  a  second  use,  was 
forced  into  the  courts  of  equity  in  the  manner  formerly 
mentioned  r  and  this  species  of  trust,  extended  by  inference 
and  construction,  has  ever  since  remained  as  a  kind  of 
peculium  in  those  courts.  [432]  But  there  are  other  trusts, 
which  are  cognizable  in  a  court  of  law,  as  deposits  and  all 
manner  of  bailments,  and  especially  that  implied  contract, 
so  highly  beneficial  and  useful,  of  having  undertaken  to 
account  for  money  received  to  another's  use,  which  is  the 
ground  of  an  action  on  the  case  almost  as  universally 
remedial  as  a  bill  in  equity. 

4.  Once  more:  it  has  been  said  that  a  court  of  equity  is 
not  bound  by  rules  or  precedents,  but  acts  from  the  opinion 
of  the  judge,  founded  on  the  circumstances  of  every  par- 
ticular case;  whereas  the  system  of  our  courts  of  equity  is 
a  labored,  connected  system,  governed  by  established  rules, 
and  bound  down  by  precedents  from  which  they  do  not 
depart,  although  the  reason  of  some  of  them  may  perhaps 
be  liable  to  objection.    Thus  the  refusing  a  wife  her  dower 


Chap.  XXVII.]       Proceedings  in  Equity.  619 

in  a  trust-estate,  yet  allowing  the  husband  his  courtesy; 
the  holding  the  penalty  of  a  bond  to  be  merely  a  security 
for  the  debt  and  interest,  yet  considering  it  sometimes  as 
the  debt  itself,  so  that  the  interest  shall  not  exceed  that 
penalty;  the  distinguishing  between  a  mortgage  at  five  per 
cent.,  with  a  clause  of  a  reduction  to  four  if  the  interest  be 
regularly  paid,  and  the  mortgage  at  four  per  cent,  with  a 
clause  of  enlargement  to  five  if  the  payment  of  the  interest 
be  deferred,  so  that  the  former  shall  be  deemed  a  consci- 
entious, the  latter  an  unrighteous  bargain,  —  all  these  and 
other  cases  that  might  be  instanced,  are  plainly  rules  of 
positive  law,  supported  only  by  the  reverence  that  is  shown, 
and  generally  very  properly  shown,  to  a  series  of  former 
determinations,  that  the  rule  of  property  may  be  uniform 
and  steady.  [433]  Nay,  sometimes  a  precedent  is  so  strictly 
followed  that  a  particular  judgment,  founded  upon  special 
circumstances,  gives  rise  to  a  general  rule. 

In  short,  if  a  court  of  equity  in  England  did  really  act  as 
many  ingenious  writers  have  supposed  it  (from  theory)  to 
do,  it  would  rise  above  all  law,  either  common  or  statute, 
and  be  a  most  arbitrary  legislator  in  every  particular  case. 

The  suggestion  of  every  bill,  to  give  jurisdiction  to  the 
courts  of  equity  (copied  from  those  early  times),  is  that 
the  complainant  hath  no  remedy  at  the  common  law.  [434] 
But  he  who  should  from  thence  conclude  that  no  case  is 
judged  of  in  equity  where  there  might  have  been  relief  at 
law,  and  at  the  same  time  casts  his  eye  on  the  extent  and 
variety  of  the  cases  in  our  equity  reports,  must  think  the 
law  a  dead  letter  indeed.  The  rules  of  property,  rules  of 
evidence,  and  rules  of  interpretation  in  both  courts  are,  or 
should  be,  exactly  the  same.  Formerly  some  causes,  which 
now  no  longer  exist,  might  occasion  a  different  rule  to  be 
followed  in  one  court  from  what  was  afterwards  adopted 
in  the  other,  as  founded  in  the  nature  and  reason  of  the 
thing  [e.  g.,  the  cases  of  penal  bonds  to  secure  payment  of 
principal  and  interest,  and  mortgages]. 

Again,  neither  a  court  of  equity  nor  of  law  can  vary  men's 
wills  or  agreements,  or,  in  other  w^ords.  make  wills  or  agree- 
ments for  them.  [435]     Both  are  to  understand  them  truly, 


620  Pkoceedings  in  Equity.  [Book  II T. 

and  therefore  both  of  them  uniformly.  A  court  of  equity 
no  more  than  a  court  of  law  can  relieve  against  a  penalty  in 
the  nature  of  stated  damages,  as  a  rent  of  57.  an  acre  for 
ploughing  up  ancient  meadow;  nor  against  a  lapse  of  time, 
where  the  time  is  material  to  the  contract,  as  in  covenants 
for  renewal  of  leases.  Both  courts  will  equitably  construe, 
but  neither  pretends  to  control  or  change,  a  lawful  stipula- 
tion or  engagement. 

The  rules  of  decision  are  in  both  courts  equally  apposite 
to  the  subjects  of  which  they  take  cognizance.  [436]  Where 
the  subject-matter  is  such  as  requires  to  be  determined 
secundum  dequum  et  honum,^  as  generally  upon  actions  on 
the  case,  the  judgments  of  the  courts  of  law  are  guided  by 
the  most  liberal  equity.  In  matters  of  positive  right  both 
courts  must  submit  to  and  follow  those  ancient  and  invariable 
maxims  ''quae  relicta  sunt  et  tradita."^  Both  follow  the 
law  of  nations,  and  collect  it  from  history  and  the  most 
approved  authors  of  all  countries  where  the  question  is  the 
object  of  that  law.  In  mercantile  transactions  they  follow 
the  marine  law,  and  argue  from  the  usages  and  authorities 
received  in  all  maritime  countries.  Where  they  exercise 
a  concurrent  jurisdiction,  they  both  follow  the  law  of  the 
proper  forum;  in  matters  originally  of  ecclesiastical  cog- 
nizance, they  both  equally  adopt  the  canon  or  imperial  law, 
according  to  the  nature  of  the  subject;  and  if  a  question 
came  before  either  which  was  properly  the  object  of  a 
foreign  municipal  law,  they  would  both  receive  information 
what  is  the  rule  of  the  country,  and  would  both  decide 
accoi'dingly. 

Such,  then,  being  the  parity  of  law  and  reason  which 
governs  both  species  of  courts,  wherein  does  their  essential 
difference  consist?  It  principally  consists  in  the  different 
modes  of  administering  justice  in  each  —  in  the  mode  of 
proof,  the  mode  of  trial,  and  the  mode  of  relief.  Upon 
these,  and  upon  two  other  accidental  grounds  of  jurisdic- 
tion, which  were  formerly  driven  into  those  courts  by 
narrow  decisions  of  the  courts  of  law,  viz.,  the  true  con- 
struction of  securities  for  money  lent,  and  the  form  and 

4.  At-eorJing   to   right   and  justice.  5.  Which  are  left  and  handed  down. 


Chap.. XXVII.]       Proceedings  in  Equity.  621 

effect  of  a  trust  or  second  use,  —  upon  these  main  pillars 
hath  been  gradually  erected  that  structure  of  jurisprudence 
which  prevails  in  our  courts  of  equity,  [437] 

1.  And  first,  as  to  the  mode  of  proof.  When  facts,  or 
their  leading  circumstances,  rest  only  in  the  knowledge  of 
the  party,  a  court  of  equity  applies  itself  to  his  conscience, 
and  purges  him  upon  oath  with  regard  to  the  truth  of  the 
transaction ;  ®  and  that  being  once  discovered,  the  judgment 
is  the  same  in  equity  as  it  would  have  been  at  law.  But 
for  want  of  this  discovery  at  law  the  courts  of  equity  have 
acquired  a  concurrent  jurisdiction  with  every  other  court 
in  all  matters  of  account."  As  incident  to  accounts,  they 
take  a  concurrent  cognizance  of  the  administration  of  per- 
sonal assets,  consequently  of  debts,  legacies,  the  distribu- 
tion of  the  residue,  and  the  conduct  of  executors  and  ad- 
ministrators. As  incident  to  accounts,  they  also  take  the 
concurrent  jurisdiction  of  tithes  and  all  questions  relating 
thereto,  of  all  dealings  in  partnership,  and  many  other 
mercantile  transactions;  and  so  of  bailiffs,  receivers,  factors, 
and  agents.  It  w^ould  be  endless  to  point  out  all  the  several 
avenues  in  human  affairs  and  in  this  commercial  age  which 
lead  to  or  end  in  accounts. 

From  the  same  fruitful  source,  the  compulsive  discovery 
upon  oath,  the  courts  of  equity  have  acquired  a  jurisdiction 
over  almost  all  matters  of  fraud,  all  matters  in  the  private 
knowledge  of  the  party,, which,  though  concealed,  are  bind- 
ing in  conscience,  and  all  judgments  at  law  obtained 
through  such  fraud  or  concealment;  and  this,  not  by  im- 
peaching or  reversing  the  judgment  itself,  but  by  prohibit- 
ing the  plaintiff  from  taking  any  advantage  of  a  judgment 
obtained  by  suppressing  the  truth,  and  which,  had  the  same 
facts  appeared  on  the  trial  as  now  are  discovered,  he  would 
never  have  attained  at  all.  [438] 

6.  In   those  states  in  which  courts  Y. )      143     (this    work     is    especially 

of  equity  still  exist,  the  complainant  adapted   to   the   chancery   practice   of 

may    still    require    an    answer    under  Michigan)  ;     Puterburgh's     Chancery 

oath  as  described  in  the  text,  but  if  Pleading  &  Practice    (4th   Ed.),   167. 

answer   on   oath    is   expressly   waived  7.  As  before  stated  the  common  law 

the  bill  and  answer  are  merely  plead-  action   of   account   is   still   in   use   in 

ings,     1  Barbour  Chancery  Prac.   (N.  Illinois. 


622  Proceedings  in  Equity.  [Book  III. 

2.  As  to  the  mode  of  trial.  This  is  by  interrogatories  ad- 
ministered to  the  witnesses,  upon  which  their  depositions 
are  taken  in  writing  wherever  they  happen  to  reside.  If, 
therefore,  the  cause  arises  in  a  foreign  country,  and  the 
witnesses  reside  upon  the  spot;  if,  in  causes  arising  in  Eng- 
land, the  witnesses  are  abroad,  or  shortly  to  leave  the  king- 
dom; or  if  witnesses  residing  at  home  are  aged  or  infirm, — 
any  of  these  cases  lays  a  ground  for  a  court  of  equity  to 
grant  a  commission  to  examine  them.* 

3.  With  respect  to  the  mode  of  relief.  The  want  of  a 
more  specific  remedy  than  can  be  obtained  in  the  courts  of 
law  gives  a  concurrent  jurisdiction  to  a  court  of  equity 
in  a  great  variety  of  cases.  To  instance  in  executory  agree- 
ments. A  court  of  equity  will  compel  them  to  be  carried 
into  strict  execution,  unless  where  it  is  improper  or  impos- 
sible, instead  of  giving  damages  for  their  non-performance. 
And  hence  a  fiction  is  established,  that  what  ought  to  be 
done  shall  be  considered  as  being  actually  done,  and  shall 
relate  back  to  the  time  when  it  ought  to  have  been  done 
originally;  and  this  fiction  is  so  closely  pursued  through 
all  its  consequences  that  it  necessarily  branches  out  into 
many  rules  of  jurisprudence,  which  form  a  certain  regular 
system.  So  of  waste  and  other  similar  injuries,  a  court  of 
equity  takes  a  concurrent  cognizance,  in  order  to  prevent 
them  by  injunction.  Over  questions  that  may  be  tried  at 
law  in  a  great  multiplicity  of  actions,  a  court  of  equity 
assumes  a  jurisdiction  to  prevent  the  expense  and  vexation 
of  endless  litigations  and  suits.  In  various  kinds  of  frauds 
it  assumes  a  concurrent  jurisdiction,  not  only  for  the  sake 
of  a  discovery,  but  of  a  more  extensive  and  specific  relief, 
as  by  setting  aside  fraudulent  deeds,  decreeing  re-convey- 
ances, or  directing  an  absolute  conveyance  merely  to  stand 
as  a  security.  [439]  And  thus,  lastly,  for  the  sake  of  a  more 
beneficial  and  complete  relief  by  decreeing  a  sale  of  lands, 
a  court  of  equity  holds  plea  of  all  debts,  incumbrances,  and 
charges  that  may  affect  it  or  issue  thereout.^ 

8.  Commissions    to    take   testimony       witnesses  taken  ther#linder  in  courts, 
in   such   cases   may   now,   by   statute,      of  law.     Consult  the  statutes, 
be   issued   and   the  testimony  of   the  9.  Courts  of  law,  as  a  rule  in  ordi- 


Chap.  XXVII.]       Peoceedings  in  Equity.  623 

4.  The  true  construction  of  securities  for  money  lent  is 
another  fountain  of  jurisdiction  in  courts  of  equity.  When 
they  held  the  penalty  of  a  bond  to  be  the  form,  and  that  in 
substance  it  was  only  as  a  pledge  to  secure  the  repayment 
of  the  sum  bona  fide  advanced,  with  a  proper  compensation 
for  the  use,  they  laid  the  foundation  of  a  regular  series  of 
determinations,  which  have  settled  the  doctrine  of  personal 
pledges  or  securities,  and  are  equally  applicable  to  mort- 
gages of  real  property.  The  mortgagor  continues  owner 
of  the  land,  the  mortgagee  of  the  money  lent  upon  it.  But 
this  ownership  is  mutually  transferred,  and  the  mortgagor 
is  barred  from  redemption,  if,  when  called  upon  by  the 
mortgagee,  he  does  not  redeem  within  a  time  limited  by  the 
court;  or  he  may,  when  out  of  possession,  be  barred  by 
length  of  time,  by  analogy  to  the  statute  of  limitations. 

5.  The  form  of  a  trust,  or  second  use,  gives  the  courts  of 
equity  an  exclusive  jurisdiction  as  to  the  subject-matter  of 
all  settlements  and  devises  in  that  form,  and  of  all  the  long 
terms  created  in  the  present  complicated  mode  of  convey- 
ancing. This  is  a  very  ample  source  of  jurisdiction;  but 
the  trust  is  governed  by  very  nearly  the  same  rules  as  would 
govern  the  estate  in  a  court  of  law  if  no  trustee  was  inter- 
posed; and  by  a  regular  positive  system  established  in  the 
courts  of  equity,  the  doctrine  of  trusts  is  now  reduced  to  as 
great  a  certainty  as  that  of  legal  estates  in  the  courts  of  the 
common  law.  [440] 

These  are  the  principal  (for  I  omit  the  minuter)  grounds 
of  the  jurisdiction  at  present  exercised  in  our  courts  of 
equity. 

The  first  commencement  of  a  suit  in  Chancery  is  by  pre- 
ferring a  bill  to  the  Lord  Chancellor  in  the  style  of  a  peti- 
tion, "  humbly  complaining  showeth  to  your  lordship  your 
orator,  A  B,  that,"  &c.  [442]  This  is  in  the  nature  of  a 
declaration  at  common  law,  or  a  libel  and  allegation  in  the 
spiritual  courts,  setting  forth  the  circumstances  of  the  case 
at  length,  as  some  fraud,  trust,  or  hardship,  ''  in  tender 

nary  actions,  administer  relief  by  the  fendant    to    do    what    in    equity    and 

award  of  damages.     Courts  of  equity,  good   conscience    he  ought   to   do;    if 

on  the  other  hand,  in  cases  in  which  damages  are  awarded  they  are,  as  a 

they  have  jurisdiction,  compel  the  de-  rule,  ancillary  to  other  relief. 


624  Proceedings  in  Equity.  [Book  III. 

consideration  whereof  "  (which  is  the  usual  language  of 
the.  bill),  **  and  for  that  your  orator  is  wholly  without 
remedy  at  the  common  law,"  relief  is  therefore  prayed  at 
the  Chancellor's  hands,  and  also  process  of  subpoena  against 
the  defendant,  to  compel  him  to  answer  upon  oath  to  all  the 
matter  charged  in  the  bill.  And  if  it  be  to  quiet  the  posses- 
sion of  lands,  to  stay  waste,  or  to  stop  proceedings  at  law, 
an  injunction  is  also  prayed  in  the  nature  of  an  intcrdictum 
by  the  civil  law,  commanding  the  defendant  to  cease.  ^ 

This  bill  must  call  all  necessary  parties,  however  remotely 
concerned  in  interest,  before  the  court,  otherwise  no  decree 
can  be  made  to  bind  them,-  and  must  be  signed  by  counsel 
as  a  certificate  of  its  decency  and  propriety,  for  it  must  not 
contain  matter  either  scandalous  or  impertinent;^  if  it  does, 
the  defendant  may  refuse  to  answer  it  till  such  scandal  or 
impertinence  is  expunged,  which  is  done  upon  an  order  to 
refer  it  to  one  of  the  officers  of  the  court  called  a  Master  in 
Chancery,^  of  whom  there  are  in  number  twelve,  including 
the  Master  of  the  Rolls.  The  master  is  to  examine  the 
propriety  of  the  bill,  and  if  he  reports  it  scandalous  or  im- 
pertinent, such  matter  must  be  struck  out,  and  the  defend- 
ant shall  have  his  costs,  which  ought  of  right  to  be  paid  by 
the  counsel  who  signed  the  bill.  [443] 

When  the  bill  is  filed  in  the  office  of  the  six  clerks  if  an 
injunction  be  prayed  therein,  it  may  be  had  at  various 
stages  of  the  cause,  according  to  the  circumstances  of  the 

1.  In  the  federal  courts  and  in  the  On  Nov.  4,  1912,  hew  federal  equity 

courts    of    chaitcery    in    those    states  rules  were  promulgated  by  the  United 

where  separate  courts  of  equity  exist,  States  Supreme  Court  to  become  effec- 

substantially  the  same  forms  as  those  tive  Feb.  1,  1913.    As  to  the  operation 

in  the  text  are  still  preserved.     See,  of  these  rules,  see  an  article  by  Wal- 

generally,       Puterburgh's       Chancery  lace  Jl.  Lane  in  Harvard  Law  Review, 

Plead.  &  Prac.    (4th  Ed.);   Barbour's  republished  in  Chicago  I^gal  News  for 

Chancery    Practice,    vol.    2;    Daniel's  Sept.   19,  1914,  Vol.  47,  No.  7,  p.  52, 

Chancery       Pleading      &       Practice;  54,  -SS. 

Hughe's  Federal  Procedure,  223,  424.  2.  See  Hughes,  Fed.  Proc.  424. 

In  many  of  the  states  the  distinc-  3.  Hughes,  Fed.  Prac,  424;  1  Barb, 

tion  in  form  between  equity  and  com-  Ch.  Prac.  43. 

mon  law  has  been  abolished;  but  the  4.  This   office   is   still   preserved   in 

essential  nature  of  the  relief  adminis-  Illinois,  Michigan  and  other  jurisdic- 

tered   remain   and   must   ever   remain  tions  retaining  chancery  courts, 
t'"-"    same    whether    in    one     or     two 
forums. 


Cjiap.  XXVIL]       Proceedings  in  Equity.  625 

case.^  If  the  bill  be  to  stay  execution  upon  an  oppressive 
judgment,  and  the  defendant  does  not  put  in  his  answer 
within  the  stated  time  allowed  by  the  rules  of  the  court, 
an  injunction  will  issue  of  course,  and,  when  the  answer 
comes  in,  the  injunction  can  only  be  continued  upon  a  suffi- 
cient ground  appearing  from  the  answer  itself.  But  if  an 
injunction  be  wanted  to  stay  waste,  or  other  injuries  of  an 
equally  urgent  nature,  then  upon  the  filing  of  the  bill,  and 
a  proper  case  supported  by  affidavits,  the  court  will  grant 
an  injunction  immediately  to  continue  till  the  defendant  has 
put  in  his  answer,  and  till  the  court  shall  make  some  further 
order  concerning  it;  and  when  the  answer  comes  in,  whether 
it  shall  then  be  dissolved  or  continued  till  the  hearing  of 
the  cause,  is  determined  by  the  court  upon  argument,  drawn 
from  considering  the  answer  and  affidavit  together. 

But,  upon  common  bills,  as  soon  as  they  are  filed,  process 
of  subpoena*^  is  taken  out,  which  is  a  writ  commanding  the 
defendant  to  appear  and  answer  to  the  bill,  on  pain  of  100/. 
If  the  defendant,  on  service  of  the  subpoena,  does  not  ap- 
pear within  the  time  limited  by  the  rules  of  the  court,  and 
plead,  demur,  or  answer  to  the  bill,  he  is  then  said  to  be  in 
contempt;  and  the  respective  processes  of  contempt  are  in 
successive  order  awarded  against  him.  [Which  are,  in 
order,  an  attachment  in  the  nature  of  a  capias,  an  attach- 
ment with  proclamations,  a  commission  of  rebellion,  send- 
ing the  Serjeant  at  arms  in  quest  of  him,  and  lastly  seques- 
tration.] After  an  order  for  a  sequestration  issued,  the 
plaintiff's  bill  is  to  be  taken  pro  confesso,'  and  a  decree  to 
be  made  accordingly.     So  that  the  sequestration  does  not 

5.  As  to  who  may  authorize  the  is-  In  those  states  practicing  under  a 
suance  of  an  injunction,  see  local  code  of  procedure,  the  same  method 
statutes  and  works  on  Practice.  prevails  both  in  law  and  equity  cases, 

6.  Where  equity  jurisprudence  is  though  differing  in  different  states. 
administered  in  this  country  in  sep-  See  ante,  note,  and  the  local  works 
arate   courts   of   chancery    or   on   the  on  Practice. 

chancery  side  of  a  common  law  court,  7.  As  confessed.  Unless  discovery 
as  in  Michigan,  Illinois,  New  Jersey  under  oath  is  required,  on  default  of 
and  Tennessee,  the  United  States  answer  within  the  time  prescribed,  the 
courts  and  perhaps  others,  a  subpoena  bill  will  be  taken  pro  confesso  with- 
er chancery  summons  following  the  out  further  process, 
filing  of  a  bill  is  the  regular  process. 

40 


626  Peoceedings  in  Equity.  [Book  III. 

seem  to  be  in  the  nature  of  process  to  bring  in  the  defendant, 
but  only  intended  to  enforce  the  performance  of  the  decree. 
Thus  much  if  the  defendant  absconds. 

If  the  defendant  is  taken  upon  any  of  this  process,  he  is 
to  be  committed  to  the  Fleet  or  other  prison,  till  he  puts  in 
his  appearance  or  answer,  or  performs  whatever  else  this 
process  is  issued  to  enforce,  and  also  clears  his  contempts 
by  paying  the  costs  which  the  plaintiff  has  incurred  thereby. 
[445]  For  the  same  kind  of  process  is  issued  out  in  all 
sorts  of  contempts  during  the  progress  of  the  cause,  if  the 
parties  in  any  point  refuse  or  neglect  to  obey  the  order  of 
the  court. 

The  process  against  a  body  corporate  is  by  distringas, 
to  distrain  them  by  their  goods  and  chattels,  rents  and 
profits,  till  they  shall  obey  the  summons  or  directions  of  the 
court. 

The  ordinary  process  before  mentioned  cannot  be  sued 
out  till  after  the  service  of  the  subpoena,  for  then  the  con- 
tempt begins,  otherwise  he  is  not  presumed  to  have  notice 
of  the  bill;  and  therefore  by  absconding  to  avoid  the  sub- 
poena a  defendant  might  have  eluded  justice,  till  the  statute 
5  Geo.  II.  c.  25,  which  enacts  that,  where  the  defendant 
cannot  be  found  to  be  served  with  process  of  subpoena,  and 
absconds  (as  is  believed)  to  avoid  being  served  therewith, 
a  day  shall  be  appointed  him  to  appear  to  the  bill  of  the 
plaintiff,  which  is  to  be  inserted  in  the  London  Gazette,  read 
in  the  parish  church  where  the  defendant  last  lived,  and 
fixed  up  at  the  Royal  Exchange,  and,  if  the  defendant  doth 
not  appear  upon  that  day,  the  bill  shall  be  taken  pro 
confesso.^ 

But  if  the  defendant  appears  regularly  and  takes  a  copy 
of  the  bill,  he  is  next  to  demur,  plead,  or  answer. 

A  demurrer  in  equity  is  nearly  of  the  same  nature  as  a 
demurrer  in  law,  being  an  appeal  to  the  judgment  of  the 
court  whether  the  defendant  shall  be  bound  to  answer  the 
plaintiff's  bill,  as,  for  want  of  sufficient  matter  of  equity 

8.  In  all  the  states  substituted  ser- 
vice by  publication,  etc.,  will  be  found 
to  have  been  established  by  statute. 


Chap.  XXVII.  ]       Proceedings  in  Equity.  627 

therein  contained,  or  where  the  plaintiff,  upon  his  own 
showing,  appears  to  have  no  right,  or  where  the  bill  seeks 
a  discovery  of  a  thing  which  may  cause  a  forfeiture  of  any 
kind,  or  may  convict  a  man  of  any  criminal  misbehavior. 
[446]  For  any  of  these  causes  a  defendant  may  demur  to 
the  bill.  And  if,  on  demurrer,  the  defendant  prevails,  the 
plaintiff's  bill  shall  be  dismissed;  if  the  demurrer  be  over- 
ruled, the  defendant  is  ordered  to  answer.^ 

A  plea  may  be  either  to  the  jurisdiction^  showing  that  the 
court  has  no  cognizance  of  the  cause,  or  to  the  person^,  show- 
ing some  disability  in  the  plaintiff,  as  by  outlawry,  excom- 
munication, and  the  like;  or  it  is  in  har,  showing  some 
matter  wherefore  the  plaintiff  can  demand  no  relief,  as  an 
act  of  parliament,  a  fine,  a  release,  or  a  former  decree.  And 
the  truth  of  this  plea  the  defendant  is  bound  to  prove  if  put 
upon  it  by  the  plaintiff.^  But  as  bills  are  often  of  a  com- 
plicated nature  and  contain  various  matter,  a  man  may 
plead  as  to  part,  demur  as  to  part,  and  answer  to  the  residue. 
But  no  exceptions  to  formal  minutiae  in  the  pleadings  will 
be  here  allowed,  for  the  parties  are  at  liberty,  on  the  dis- 
covery of  any  errors  in  form,  to  amend  them.^ 

An  answer  is  the  most  usual  defence  that  is  made  to  a 
plaintiff's  bill.  It  is  given  in  upon  oath,^  or  the  honor  of  a 
peer  or  peeress;  but  where  there  are  amicable  defendants, 
their  answer  is  usually  taken  without  oath  by  consent  of 
the  plaintiff.  Yet  if  in  the  bill  any  question  be  put  that 
tends  to  the  discovery  of  any  crime,  the  defendant  may 
thereupon  demur,  as  was  before  observed,  and  may  refuse 
to  answer.  [447] 

An  answer  must  be  [sworn  to,  unless  an  answer  on  oath 
is  waived,  and  must  be]  signed  by  counsel,  and  must  either 
deny  or  confess  all  the  material  parts  of  the  bill;  or  it  may 

9.  See,  as  to  demurrer,  1  Barbour's  2.  This  is  the  regular  way  of  get- 

Chanc.  Prac.  105.     In  some  jurisdic-  ting  new  facts  in  the  bill,  as  in  chan- 

.tions  a  motion  to  dismiss  the  bill  for  eery  there  are  no  sp,ecial  replications 

want  of  equity  takes  the  place  of  a  setting  up  new  matter, 

demurrer.  3.  When  answer  under  oath  is  not 

1.  See    1    Barbour's    Chanc.    Prac.  waived,  as  is  usually  the  case. 
114. 


C28  Proceedings  in  Equity.  [Book  III. 

confess  and  avoid,  that  is,  justify  or  palliate  tlie  facts.* 
[448]  If  one  of  these  is  not  done,  the  answer  may  be  ex- 
cepted to  for  insufficiency,  and  the  defendant  be  compelled 
to  put  in  a  more  sufficient  answer.  A  defendant  cannot 
pray  anything  in  this  his  answer  but  to  be  dismissed  the 
court;  if  he  has  any  relief  to  pray  against  the  plaintiff,  he 
must  do  it  by  an  original  bill  of  his  own,  which  is  called 
a  cross-bill.^ 

After  answer  put  in,  the  plaintiff  upon  payment  of  costs 
may  amend  his  bill,  either  by  adding  new  parties  or  new 
matter,  or  both,  upon  the  new  lights  given  him  by  the  de- 
fendant; and  the  defendant  is  obliged  to  answer  afresh  to 
such  amended  bill.®  But  this  must  be  before  the  plaintiff 
has  replied  to  the  defendant's  answer,  whereby  the  cause 
is  at  issue;  for  afterwards,  if  new  matter  arises  which  did 
not  exist  before  he  must  set  it  forth  by  a  supplemental-billJ 
There  may  be  also  a  bill  of  revivor*  when  the  suit  is  abated 
by  the  death  of  any  of  the  parties,  in  order  to  set  the  pro- 
ceedings again  in  motion,  without  which  they  remain  at  a 
stand.  Ajid  there  is  likewise  a  bill  of  interpleader,^  whei-e 
a  person  who  owes  a  debt  or  rent  to  one  of  the  parties  in 
suit,  but,  till  the  determination  of  it,  he  knows  not  to  which, 
desires  that  they  may  interplead,  that  he  may  be  safe  in 
the  payment.  In  this  last  case  it  is  usual  to  order  the 
money  to  be  paid  into  court  for  the  benefit  of  such  of  the 
parties  to  whom  upon  hearing  the  court  shall  decree  it  to  be 
due.  But  this  depends  upon  circumstances,  and  the  plain- 
tiff must  also  annex  an  affidavit  to  his  bill,  swearing  that  ho 
does  not  collude  with  either  of  the  parties. 

If  the  plaintiff  finds  sufficient  matter  confessed  in  the 
defendant's  answer  to  ground  a  decree  upon,  he  may  pro- 

4.  See,  generalh',  as  to  defence  by  Chane.  Prac.  cli.  9;   Puterburgh's  Ch. 

answer,   1  Barb.  CJi.  Pr.  130;   Putei-  PI.  &  Pr.    (4th   Ed.),  ch.  24. 

burgh's    Chan.   PI.    &   Pr.    (4th   Ed.)  6.  See  1  Barb.  Chanc.  Pr.  113,  119, 

158.  172,  210,  219;  Puterburgh's  Ch.  PI.  & 

6.  The   cross-bill-  is,    however,   filed  Pr.    (4th  Ed.),  ch.  9. 

in   the   same   court   and    cause.      See,  7.  See  1  Barb.  Ch.  Pr.  362. 

generally,  as  to  the  nature,  purposes  8.  See  Puterburgh'si  Ch.   PI.  &  Pr. 

of  and  proceedings  upon,  2  Barbour's  (4th  Ed.),  ch.  17. 

9.  See  Id.,  ch.  22. 


Chap.  XXVII.]       Proceedings  in  Equity.  G29 

<}eed  to  tlie  hearing  of  the  cause  upon  bill  and  answer  only. 
But  in  that  case  he  must  take  the  defendant's  answer  to 
be  true  in  every  point.*  Otherwise  the  course  is  for  the 
plaintiff  to  reply  generally  to  the  answer,  averring  his  bill 
to  be  true,  certain,  and  sufficient,  and  the  defendant's 
answer  to  be  directly  the  reverse,  which  he  is  ready  to  prove 
as  the  court  shall  award,^  upon  which  the  defendant  rejoins, 
averring  the  like  on  his  side,  which  is  joining  issue  upon 
the  facts  in  dispute.^  [449]  To  prove  which  facts  is  the 
next  concern. 

This  is  done  by  examination  of  witnesses  and  taking  their 
depositions  in  writing,  according  to  the  manner  of  the  civil 
law.^  And  for  that  purpose  interrof/atories  are  framed,  or 
questions  in  writing,  which,  and  which  only,  are  to  be  pro- 
posed to  and  asked  of  the  witnesses  in  the  cause.  These 
interrogatories  must  be  short  and  pertinent,  not  leading 
ones:  as,  "  Did  not  you  see  this?"  or  "  Did  not  you  hear 
that?"  for  if  they  be  such,  the  depositions  taken  thereon 
will  be  suppressed  and  not  suffered  to  be  read.  For  the 
purpose  of  examining  witnesses  in  or  near  London  there 
is  an  examiner 's  office  appointed ;  but  for  such  as  live  in  the 
country  a  commission  to  examine  witnessess  is  usually 
granted  to  four  commissioners,  two  named  of  each  side,  or 
any  three  or  two  of  them,  to  take  the  depositions  there.^ 
And  if  the  witnesses  reside  beyond  sea,  a  commission  may 
be  had  to  examine  them  there  upon  their  own  oaths,  and  (if 
foreigners)  upon  the  oaths  of  skilful  interpreters.  And  it 
hath  been  established  that  the  deposition  of  an  heathen  who 

1.  1   Barb.   Ch.  Pr.  318.  officer,  upon  a  vica  voce  examination 

2.  Id.,  ch.   9.  and  cross-examination  by  counsel.     It 

3.  We  do  not  understand  that  a  the  witnesses  cannot  be  produced  be- 
rejoinder  is  either  necessary  or  usual  fore  the  master,  the  statutes  author- 
in  tlie  United  States.  The  cause  is  ize  the  taking  of  their  depositions  by 
at  view  as  soon  as  the  replication  is  dedimns  potestatem,  or  commission, 
filed.  Puterburgh's  Ch.  PI.  &  Pr.  (4th  to  take  testimony  upon  interrogato- 
Ed.),  210;  Barb.  Ch.  Pr.  2-19;  2  Dan-  ries  and  cross-intcrrogatorics  or  viva 
iel's  Ch.  PI.  &,  Pr.  (3d  Am.  Ed.),  828,  voce,  as  counsel  may  elect.  This  ia 
note;    Story's  Eq.  PI..  §   879,  note.  the  general  method.     For  details,  con- 

4.  In  the  United  States  testimony  suit  the  local  statutes  and  books  on 
in  chancery  cas?s  is  usually  taken  by  Practice.  See  Puterburgh's  Ch.  PI. 
deposition   before  a  master,   or  other  &  Pr.   (4th  Ed.),  221-225. 


630  Pbocebdings  in  Equity.  [Book  III. 

believes  in  the  Supreme  Being,  taken  by  commission  in  the 
most  solemn  manner  according  to  the  custom  of  his  own 
country,  may  be  read  in  evidence.^ 

The  commissioners  are  sworn  to  take  the  examinations 
truly  and  without  partiality,  and  not  to  divulge  them  till 
published  in  the  Court  of  Chancery,  and  their  clerks  are 
also  sworn  to  secrecy.  The  witnesses  are  compellable  by 
process  of  subpoena,  as  in  the  courts  of  common  law,  to 
appear  and  submit  to  examination.  And  when  their  depo- 
sitions are  taken  they  are  transmitted  to  the  court  with 
the  same  care  that  the  answer  of  a,  defendant  is  sent. 

If  witnesses  to  a  disputable  fact  are  old  and  infirm,  it  is 
very  usual  to  file  a  bill  to  perpetuate  the  testimony  of  those 
witnesses  although  no  suit  is  depending,  for,  it  may  be,  a 
man's  antagonist  only  waits  for  the  death  of  some  of  them 
to  begin  his  suit.*'  [450] 

When  all  the  witnesses  are  examined,  then,  and  not  be- 
fore, the  depositions  may  be  published,  by  a  rule  to  pass 
publication,  after  which  they  are  open  for  the  inspection  of 
all  the  parties,  and  copies  may  be  taken  of  them.  The  cause 
is  then  ripe  to  be  set  down  for  hearing,^  which  may  be  done 
at  the  procurement  of  the  plaintiff  or  defendant  before 
either  the  Lord  Chancellor  or  the  Master  of  the  Rolls,  ac- 
cording to  the  discretion  of  the  clerk  in  court,  regulated  by 
the  nature  and  importance  of  the  suit  and  the  arrear  of 
causes  depending  before  each  of  them  respectively.  Con- 
cerning the  authority  of  the  Master  of  the  Rolls  to  hear  and 
determine  causes,  and  his  general  power  in  the  Court  of 
Chancery,  it  was  declared  by  statute  3  Geo.  II.  c.  30,  that 
all  orders  and  decrees  by  him  made,  except  such  as  by  the 
course  of  the  court  were  appropriated  to  the  Great  Seal 
alone,  should  be  deemed  to  be  valid;  subject,  nevertheless, 
to  be  discharged  or  altered  by  the  Lord  Chancellor,  and  so 
as  they  shall  not  be  enrolled  till  the  same  are  signed  by  his 

5.  Omichund  V.  Barker,  Willes,  538 ;  7.  An  order  closing  the  taking  of 
1  Smith's  Lead.  Cas.  "SSS.  testimony  is  entered  here  before  the 

6.  See  Puterburgh's  Ch.  PL  &  Pr.  cause  is  set  down  for  hearing. 
(4th  Ed.),  ch.  23. 


Chap.  XXVII.]       Peoceedings  in  Equity.  '  631 

lordship.*  Either  party  may  be  subpoenaed  to  hear  judg- 
ment® on  the  day  so  fixed  for  the  hearing,  and  then,  if  the 
plaintiff  does  not  attend,  his  bill  is  dismissed  with  costs,  or, 
if  the  defendant  makes  default,  a  decree  will  be  made 
against  him  which  will  be  final,  unless  he  pays  the  plain- 
tiff's cost  of  attendance  and  shows  good  cause  to  the  con- 
trary on  a  day  appointed  by  the  court.  [451]  A  plaintiff's 
bill  may  also  at  any  time  be  dismissed  for  want  of  prosecu- 
tion, which  is  in  the  nature  of  a  nonsuit  at  law,  if  he  suffers 
three  terms  to  elapse  without  moving  forward  in  the  cause. 
When  there  are  cross  causes  on  a  cross-bill  filed  by  the 
defendant  against  the  plaintiff  in  the  original  cause,  they 
are  generally  contrived  to  be  brought  on  together,  that  the 
same  hearing  and  the  same  decree  may  serve  for  both  of 
them.^  The  method  of  hearing  causes  in  court  is  usually 
this.  The  parties  on  both  sides  appearing  by  their  counsel, 
the  plaintiff's  bill  is  first  opened  or  briefly  abridged,  and 
the  defendant's  answer  also,  by  the  junior  counsel  on  each 
side;  after  which  the  plaintiff's  leading  counsel  states  the 
case  and  the  matters  in  issue,  and  the  points  of  equity  aris- 
ing therefrom;  and  then  such  depositions  as  are  called  for 
by  the  plaintiff  are  read  by.  one  of  the  six  clerks,^  and  the 
plaintiff  may  also  read  such  part  of  the  defendant's 
answer  as  he  thinks  material  or  convenient;  and  after  this 
the  rest  of  the  counsel  for  the  plaintiff  make  their  observa- 
tions and  arguments.  Then  the  defendant's  counsel  go 
through  the  same  process  for  him,  except  that  they  may 
not  read  any  part  of  his  answer  [quaere ,  when  answer  on 
oath  is  not  waived  and  the  answer  is  responsive  to  the  bill] ; 
and  the  counsel  for  the  plaintiff  are  heard  in  reply.  When 
all  are  heard,  the  court  ^  pronounces  the  decree,  adjusting 
every  point  in  debate  according  to  equity  and  good  con- 
science, which  decree  being  usually  very  long,  the  minutes 

8.  See  the  Supreme  Court  of  Judi-  1    This  is  still  the  practice, 
cature    Act    for    changes    in    English          2.  By  counsel  here. 

system.  3.  Usually  the  court  will  take  the 

9.  Not  the  practice  in  this  country,      cause  under  advisement  and  pronounce 
The  manner  of  bringing  a  cause  to     •^he  decree  later. 

hearing  varies  in  the  different  states. 
See  local  works  on  Practice. 


632  Proceedings  IN  Equity.  [Book  III. 

of  it  are  taken  down  and  read  openly  in  court  by  the  regis- 
trar. The  matter  of  costs*  to  be  given  to  either  party  is 
not  here  held  to  be  a  point  of  right,  but  merely  discretion- 
ary (by  the  statute  17  Ric.  II.  c.  6),  according  to  the  circum- 
stances of  the  case  as  they  appear  more  or  less  favorable 
to  the  party  vanquished.  And  yet  the  statute  15  Hen.  VI. 
c.  4,  seems  expressly  to  direct  that  as  well  damages  as  costs 
shall  be  given  to  the  defendant,  if  wrongfully  vexed  in  this 
court.  [452] 

The  Chancellor's  decree  is  either  interlocutory  or  final. 
It  very  seldom  happens  that  the  first  decree  can  be  final, 
or  conclude  the  cause;  for  if  any  matter  of  fact  is  strongly 
controverted,  this  court  is  so  sensible  of  the  deficiency  of 
trial  by  written  depositions  that  it  will  not  bind  the  parties 
thereby,  but  usually  directs  the  matter  to  be  tried  by  jury;'^ 
especially  such  important  facts  as  the  validity  of  a  will,  or 
whether  A  is  the  heir-at-law  to  B,  or  the  existence  of  a 
modus  decimandi^  or  real  and  immemorial  composition  for 
tithes.  But  as  no  jury  can  be  summoned  to  attend  this 
court,  the  fact  is  usually  directed  to  be  tried  at  the  bar  of 
the  Court  of  King's  Bench  or  at  the  assises  upon  a  feigned 
issue.  For  (in  order  to  bring  it  there,  and  have  the  point 
in  dispute,  and  that  only,  put  in  issue),  an  action  is  brought 
wherein  the  plaintiff  by  a  fiction  declares  that  he  laid  a 
wager  of  5/.  with  the  defendant  that  A  was  heir  at  law  to 
B,  and  then  avers  that  he  is  so,  and  therefore  demands  the 
51.  The  defendant  admits  the  feigned  wager,  but  avers  that 
A  is  not  the  heir  to  B;  and  thereupon  that  issue  is  joined, 
which  is  directed  out  of  Chancery  to  be  tried,  and  thus  the 
verdict  of  the  jurors  at  law  determines  the  fact  in  the  court 
of  equity.^ 

4.  Consult  local  statutes  and  books  6.  Method  of  tithing. 

on  practice.  7.  The  manner  of  framing  the  issue 

5.  The  court  may,  in  this  country,  depends  upon  the  statutes.  Regularly 
direct  an  issue  to  be  tried  by  a  jury;  a  verdict  on  a  feigned  issue  is  merely 
but  it  is  not  a  very  common  practice.  advisory  and  to  inform  the  chanccl- 
In  some  states,  however,  the  statutes  lor's  conscience.  By  statute  in  some 
autliorize  the  trial  of  certain  cases  casrs  its  effect  may  be  binding.  Con- 
in   chancery  before  a  jury,  especially  suit  the  local  statutes. 

will   cases. 


Chap.  XXVII.]       Proceedings  in  Equity.  633 

So  likewise,  if  a  question  of  mere  law  arises  in  the  course 
of  a  cause,  as  whether  by  the  words  of  a  will  an  estate  for 
life  or  in  tail  is  created,  or  whether  a  future  interest  devised 
by  a  testator  shall  operate  as  a  remainder  or  an  executory 
devise,  it  is  the  practice  of  this  court  to  refer  it  to  the 
opinion  of  the  judges  of  the  Court  of  King 's  Bench  or  Com- 
mon Pleas  upon  a  case  stated  for  that  purpose,  wherein  all 
the  material  facts  are  admitted  and  the  point  of  law  is  sub- 
mitted to  their  decision,  who  thereupon  hear  it  solemnly 
argued  by  counsel  on  both  sides  and  certify  iheir  opinion 
to  the  Chancellor.  [453]  And  upon  such  certificate  the 
decree  is  usually  founded.^ 

Another  thing  also  retards  the  completion  of  decrees. 
Frequently  long  accounts  are  to  be  settled,  incumbrances 
and  debts  to  be  inquired  into,  and  a  hundred  little  facts  to 
be  cleared  up,  before  a  decree  can  do  full  and  sufficient 
justice.  These  matters  are  always  by  the  decree  on  the  first 
hearing  referred  to  a  master  in  Chancery  to  examine,  which 
examinations  frequently  last  for  years;  and  then  he  is  to 
report  the  fact,  as  it  appears  to  him,  to  the  court.  This 
report  may  be  excepted  to,  disproved,  and  overruled,  or 
otherwise  is  confirmed  and  made  absolute  by  order  of  the 
court.'' 

When  all  issues  are  tried  and  settled,  and  all  references 
to  the  master  ended,  the  cause  is  again  brought  to  hearing 
upon  the  matters  of  equity  reserved,  and  a  final  decree  is 
made,  the  performance  of  which  is  enforced  (if  necessary) 
by  commitment  of  the  person  or  sequestration  of  the  party's 
estate.  And  if  by  this  decree  either  party  thinks  himself 
aggrieved  he  may  petition  the  Chancellor  for  a  rehearing, 
whether  it  was  heard  before  his  lordship  or  any  of  the 
judges  sitting  for  him,  or  before  the  Master  of  the  Bolls. 
For  whoever  may  have  heard  the  cause,  it  is  the  Chancel- 
lor's decree,  and  must  be  signed  by  him  before  it  is  enrolled^ 
which  is  done  of  course  unless  a  rehearing  be  desired. 
Every  petition'  for  a  rehearing  must  be  signed  by  two 
counsel  of  character,  usually  such  as  have  been  concerned 

8.  With  us  the  trial  court  decides  9.  Tlie  same  practice  prevails  here, 

all  questions  of  law. 


634  Peoceedings  in  Equity.  [Book  IIL 

in  the  cause,  certifying  that  they  apprehend  the  cause  is 
proper  to  be  reheard.  And  upon  the  rehearing  all  the  evi- 
dence taken  in  the  cause,  whether  read  before  or  not,  is  now 
admitted  to  be  read,  because  it  is  the  decree  of  the  Chancel- 
lor himself,  who  only  now  sits  to  hear  reasons  why  it  should 
not  be  enrolled  and  perfected,  at  which  time  all  omissions 
of  either  evidence  or  argument  may  be  supplied.  [454]  But 
after  the  decree  is  once  signed  and  enrolled  it  cannot  be  re- 
heard or  rectified  but  by  bill  of  review  or  by  appeal  to  the 
House  of  Lords. 

A  bill  of  review  may  be  had  upon  apparent  error  in  judg- 
ment appearing  on  the  face  of  the  decree,  or  by  special  leave 
of  the  court,  upon  oath  made  of  the  discovery  of  new  matter 
or  evidence  which  could  not  possibly  be  had  or  used  at  the 
time  when  the  decree  passed.  But  no  new  evidence  or 
matter  than  in  the  knowledge  of  the  parties,  and  which 
might  have  been  used  before,  shall  be  a  sufficient  ground 
for  a  bill  of  review.^ 

An  appeal  to  parliament,  that  is,  to  the  House  of  Lords, 
is  the  dernier  resort  of  the  subject  who  thinks  himself  ag- 
gi'ieved  by  an  interlocutory  order  or  final  determination  in 
this  court ;  and  it  is  effected  by  petition  to  the  House  of  Peers, 
and  not  by  writ  of  error,  as  upon  judgments  at  common  law. 
No  new  evidence  is  admitted  in  the  House  of  Lords  upon  any 
account,  this  being  a  distinct  jurisdiction.^ 

1.  still  the  practice.  See  2  Barb.  As  to  equity  jurisprudence,  see, 
Ch.  Pr.,  ch.  8;  Puterburgh's  Ch.  PI.  generally,  Eaton  on  Equity  (1901); 
&  Pr.    (4tii   Ed.),  ch.  20.  Story's  Equity  Jurisprudence,  2  vols.; 

2.  An  appeal  and  not  a  writ  of  er-  Adams'  Equity,  and  vol.  2  of  this 
ror   is   the  regular  method  of  review  series. 

in  an  appellate  court;   and  the  hear-  The   following  note   from  the   1838 

ing  is  upon  the  whole  case  on  the  evi-  edition    of    Chitty's    Blackstone    con- 

dence  already  taken.  tains  so  good  a  summary  of  the  juris- 

Upon  the  subject  of  chancery  plead-  dictions  of  courts  of  equity  that  it  ia 

ing  and  practice,  see,  generally,  Dan-  in  great  part  here  reproduced:    "The 

iel's    Chan.   Plead.   &   Prac,    3   vols.;  matters  over  which  the  court  of  chan- 

Barbour's  Chan.  Plead.  &  Prac.    (an  eery  maintains  an  eqiytable  jurisdic- 

ex'cellent  work)  ;    Puterburgh's  Chan,  tjon  have  been  arranged  in  the  follow- 

Plead.  &  Prac;  Story's  Equity  Plead-  ing   alphabetical    order;    and   as   this 

ing;  Shipman's  Equity  Pleading.   See,  analysis    has   the   recommendation   of 

also,  vol.  2  of  this  series.  practical  utility,  we  shall  proceed  to 


Chap.  XXVII.]       Pkoceedings  in  Equity. 


635 


embody  the  principal  rules  and  deci- 
sions under  each  head  respectively. 

Ist.  Accident  and  Mistake. 

2d.  Account. 

3d.  Fbaud. 

4th.  Infants. 

5th.  Specific  Pebfobmance  of 
Agreements. 

6th.  Trusts. 

1st.  Accident  and  Mistake. —  3y 
accident  is  meant,  where  a  case  is  dis- 
tinguished from  others  of  the  like 
nature  by  unusual  circumstances,  for 
the  court  of  chancery  cannot  control 
the  maxims  of  the  common  law,  be- 
cause of  general  inconvenience;  but 
only  where  the  observation  of  a  rule 
is  attended  with  some  unusual  and 
particular  inconvenience.     10  Mod.  1. 

1.  Bonds,  dc. —  Equity  will  relieve 
against  th«  loss  of  deeds  (3  V.  &  B. 
54),  or  bonds  (5  Ves.  235;  6  Ves. 
812) ;  but  not  if  the  bond  be  volun- 
tary. 1  Ch.  Ca.  77.  It  will  also  set 
up  a  bond  so  lost  or  destroyed,  against 
sureties,  though  the  principal  be  out 
of  the  jurisdiction.  3  Atk.  93;  1  Ch. 
Ca.  77 ;  9  Ves.  464.  Bonds  made  joint, 
instead  of  several,  may  be  modified 
according  to  intent  in  some  cases.  2 
Atk.  33;  9  Ves.  118;  17  Ves.  514;  1 
Meriv.  564. 

Boundaries,  dc. —  Equity  will  as- 
certain the  boundaries,  or  fix  the 
value,  where  lands  have  been  inter- 
mixed by  unity  of  possession.  2 
Meriv.  507;  1  Swanst.  9.  So  to  dis- 
tinguish copyhold  from  freehold  lands 
within  the  manor.  4  Ves.  180;  Nels. 
14. 

Penalties,  Forfeitures,  dc,  incurred 
by  accident,  are  relieved  against  (2 
Vern.  594;  1  S*-a.  453;  I  Bro.  C.  C. 
418;  2  Sch.  &  Lef.  685),  where  the 
thing  may  be  done  afterwards,  or  a 
compensation  made  for  it.  1  Ch.  Ca. 
24;  2  Ventr.  353;  9  Mod.  22;  18  Ves. 


63.  But  no  relief  is  given  in  the  case 
of  a  voluntary  composition,  payable 
at  a  fixed  period.  Amb.  332;  see  1 
Vern.  210;  2  Atk.  527;  3  Atk.  585; 
16  Ves,  372.  Equity  will  not  relieve 
against  the  payment  of  stipulated,  or 
as  they  are  sometimes  called,  liqui- 
dated damages  (2  Atk.  194;  Finch, 
117;  2  Cha.  Ca.  198;  6  Bro.  P.  C. 
470;  1  ox,  27;  2  Bos.  &  P.  346;  3 
Atk.  395 )  ;  and  forfeitures  under  acts 
of  parliament,  or  conditions  in  law, 
which  do  not  admit  of  compensation, 
or  a  forfeiture  which  may  be  consid- 
ered as  a  limitation  of  an  estate, 
which  determines  it  when  it  happens, 
cannot  be  relieved  against.  1  Ball  & 
Bat.  373,  478;  1  Stra.  447,  452;  Prec. 
Ch.  574. 

Mistake. —  A  defective  conveyance 
to  charitable  uses  is  always  aided  (1 
Eden.  14;  2  Vern.  755;  Prec.  Ch.  16; 
2  Vern.  453;  Hob.  136);  but  neither 
a  mistake  in  a  fine  (if  after  death  of 
conusor),  or  in  the  names  in  a  re- 
covery are  supplied,  especially  against 
a  purchaser.  2  Vern.  3  Ambl.  102, 
Nor  an  erroneous  recovery  in  the 
manorial  court.  1  Vern.  367.  Mis- 
takes in  a  deed  or  contract,  founded 
on  good  consideration,  may  be  recti- 
fied. 1  Ves,  317;  2  Atk.  203.  And 
if  a  bargain  and  sale  be  made  and 
not  enrolled  within  six  months,  equity 
will  compel  the  vendor  to  make  a 
good  title,  by  executing  another  bar- 
gain and  sale  which  may  be  enrolled. 
6  Ves.  745.  A  conveyance  defective 
in  form  may  be  rectified  (1  Eq,  Ab. 
320;  1  P.  W.  279),  even  against  as- 
signees (2  Vern.  564;  1  Atk.  162;  4 
Bro.  C.  C.  472 ) ,  or  against  represen- 
tatives. 1  Anst.  14.  So  defects  in 
surrenders  of  copyhold.  2  Vern.  564; 
Salk.  449;  2  Vern.  151.  But  not  the 
omission  of  formalities  required  by 
act  of  parliament  in  conveyances.     5 


636 


Pkoceedings  in  Equity. 


[Book  IIT. 


Ves.  240;  3  Bro.  C.  C.  571;  13  Ves. 
588;  15  Ves.  60;  6  Ves.  745;  11  Ves. 
(526.  Defects  in  the  mod«  of  convey- 
ance may  be  remedied.  4  Bro.  C.  C. 
382.  So  the  execution  of  powers.  2 
r.  W,  623. 

2d.  Account. — Mutual  dealings  and 
demands  betweon  parties,  which  arc 
too  complex  to  be  accurately  taken 
by  trial  at  law,  may  be  adjusted  in 
equity  [1  Soh.  &  Lefroy,  309;  13  Ves. 
278,  9;  1  Mad.  Ch.  86  and  note  (i)  ] ; 
but  if  the  subject  be  matter  of  set-off 
at  law,  and  capable  of  proof,  a  bill 
will  not  lie  (6  Ves.  13G)  ;  and  the 
difficulty  in  adjusting  the  account  con- 
stitutes no  legal  objection  to  an  ac- 
tion. 5  Taunt.  481;  1  Marsh,  115; 
2  Camp.  238. 

3d.  Fraud. —  Equity  has  so  great 
an  abhorrence  of  fraud,  that  it  will 
set  aside  its  own  decrees  if  founded 
thereupon;  and  a  bill  lies  to  vacate 
letters  patent  obtained  by  fraud.  13 
Vin.  Ab.  543,  pi.  9;  1  Vern.  277.  AH 
deceitful  practices  and  artful  devices, 
contrary  to  the  plain  rules  of  common 
honesty,  are  frauds  at  common  law, 
and  punishable  there;  but  for  some 
frauds  or  deceits  there  is  no  remedy 
at  law,  in  which  cases  they  are  cog- 
nizable in  equity,  as  one  of  the  chief 
branches  of  its  original  jurisdiction. 
2  Ch.  Ca.  193;  Finch,  161;  2  P.  W. 
270;  2  Vern.  189;  2  Atk,  324;  3  P. 
W.  130;  Brig.  Ind.  tit.  Fraud,  pi.  1. 
Where  a  person  is  prevented  by  fraud 
from  executing  a  deed,  equity  will* 
regard  it  as  already  done.  1  Jac.  & 
W.  99. 

1.  Trustees  are  in  no  case  permit- 
ted to  purchase  from  themselves  the 
trust  estate  ( 1  Vern.  465 ) ,  nor  their 
solicitor.  3  Mer.  200.  Nor  in  bank- 
ruptcy are  the  commissioners  (6  Ves. 
617)  or  assignees  (6  Ves.  627),  nor 
their   solicitors.     10   Ves.   381.     Nor 


committee  or  ke'per  of  a  lunatic  (13 
Ves.  156),  nor  an  executor  (1  Ves.  & 
B.  170;  1  Cox,  134),  nor  governors 
of  charities.     17  Ves.  500. 

2dly.  Attorney  and  Client. — Fraud 
in  transactions  between  attorneys  and 
client  is  guarded  against  most  watcli- 
fully.  2  Ves.  J.  201;  1  Mad.  Ch.  114, 
5,  116. 

3dly.  Heirs,  Sailors,  dc. —  Equity 
will  protect  improvident  heirs  against 
agreements  binding  on  their  future 
expectancies,  negotiated  during  some 
temporary  embarrassment,  provided 
such  agreement  manifest  great  inad-f- 
quacy  of  consideration.  1  Vern.  169; 
2  Vern.  27;  IP.  W.  310;  1  Bro.  C.  C. 
1 ;  2  Ves.  157.  It  will  also  set  aside 
unequal  contracts  obtained  from  sail- 
ors respecting  their  prize-money 
(Newl.  Cont.  443;  1  Wils.  229;  2  Ves. 
2S1,  516),  and  the  fourth  section 
of  20  G.  III.  c.  24),  declares  all  bar 
gains,  etc.,  concerning  any  share  of 
a  prize  taken  from  any  of  his  ma- 
jesty's enemies,  etc.,  void.  Vid.  NewL 
Cont.  444. 

4thly.  Guardian. —  Fraud  between 
guardian  and  ward  is  also  the  subject 
of  strict  cognizance  in  the  court  of 
chancery.  For  the  details  under  this 
head,  see  1  book,  ch.  XVII,  and  notes. 

Sthly.  Injunctions. —  In  a  modern 
work  the  subject  of  injunctions  is  con- 
sidered under  the  head  of  Fraud  (see 
1  Mad.  Ch.  125),  but  it  seems  to  de- 
serve a  distinct  consideration.  An 
injunction  is  a  method  by  which  the 
court  of  chancery  interferes  to  pre- 
vent the  commission  of  fraud  and  mis- 
chief. The  exercise  of  this  authority 
may  be  obtained:  1st.  To  stay  pro- 
ceedings in  other  courts.  2d.  To  re- 
strain infringements  of  patent.  3d. 
To  stay  waste.  4th.  To  preserve  copy- 
right. 5th.  To  restrain  negotiation  of 
bills,  etc.,  or  the  transfer  of  stock.  6th. 


Chap.  XXVII.]       Proceedings  in  Equity. 


637 


To  prevent  nuisances,  and  in  most 
cases  where  the  rights  of  others  are 
invaded,  and  the  remedy  by  action  at 
law  is  too  remote  to  prevent  increas- 
ing damage.  See  1  Mad.  Ch.  157  to 
165.  An  injunction  to  stay  proceed- 
ings at  law  does  not  extend  to  a  dis- 
tress for  rent.  1  Jac.  &  W.  392.  Nor 
has  equity  any  jurisdiction  to  stop 
goods  in  transitu  in  any  case,  nor  will 
the  court  restrain  the  sailing  of  a  ves- 
sel for  such  purpose  by  injunction. 
2  Jac.  &  W.  349. 

6thly.  Bills  of  Peace,  whicli  form  an 
essential  check  in  litigation.  1  Bro. 
P.  C.  266;  2  Bro.  P.  C.  217;  Bunb. 
158;  1  P.  W.  671;  Prec.  Ch.  262;  1 
Stra.  404.  For  this  purpose  a  per- 
petual injunction  will  be  granted.  See 
10  Mod.  1;  l.Bro.  P.  C.  268.  This 
bill  cannot  hold  in  disputes  between 
two  persons  only.  2  Atk.  483,  391; 
4  Bro.  C.  C.  157;  Vin.  tit.  Ch.  425, 
pi.  35;   3  P.  W.   156. 

7thly.  Bill  of  Interpleader  will  lie  to 
prevent  fraud  or  injustice,  where  two 
or  more  parties  claim  adversely  to 
each  other,  from  him  in  possession 
(otherwise  it  will  not  lie,  1  M?r. 
405)  ;  for  in  such  case,^it  is  necessary 
the  two  claimants  should  settle  their 
rights  before  the  person  holding  pos- 
session be  required  to  give  up  to 
either.  2  Ves.  J.  310;  Mitf.  PI.  39; 
1  Mad.  Ch.  173.  And  on  the  same 
principle. 

Sthly,  Bills  or  Writs  of  Certiorari, 
to  remove  a  cause  from  an  inferior, 
or   incompetent  jurisdiction, 

9thly.  Bills  to  perpetuate  testimony 
in  danger  of  being  lost  before  the 
right  can  be  ascertained. 

lOthly.  Bills  to  discover  evidence  in 
possession  of  defendant,  whereof 
plaintiff  would  be  otherwise  wholly 
deprived,  or  of  deeds,  etc.,  in  defend- 
ant's custody. 


llthly.  Bills  of  Quia  Timet  for  the 
purpose  of  preventing  a  possible  fu- 
ture injury,  and  thereby  quieting 
men's  minds  and  estates,  etc,  1  Mad. 
Ch.  224;  Newl.  on  Contr.,  93,  493. 

12thly.  Bills  for  the  delivering  up 
of  Deeds. — As  where  an  instrument  ia 
void  at  common  law,  as  being  against 
the  policy  of  the  law,  it  belongs  to 
the  jurisdiction  of  equity,  to  order  it 
to  be  delivered  up.  11  Ves,  535.  In 
Mayor,  etc.,  of  Colchester  v.  Lowton, 
Lord  Eldon  says,  "  My  opinion  has 
always  been  (differing  from  others) 
that  a  court  of  equity  has  jurisdiction 
and  duty  to  order  a  void  deed  to  be 
delivered  up,  and  placed  with  those 
whose  property  may  be  affected  by  it, 
if  it  remains  in  other  hands."  1  Ves. 
&  B.  244. 

13th.  Bills  for  apportionment  or 
contribution  between  persons  standing 
in  particular  relations  one  to  another. 
5  Ves.  792;  2  Freem.  97. 

14tli.  For  dower  and  partition, 

loth.  To   establish   moduses. 

16th.  Bills  to  marshal  securities. 

17th,  Bills  to  secure  property  in 
litigation  in  other  cmirts.     And 

18th  and  lastly.  Bills  to  compel 
lords  of  manors  to  hold  courts,  or  to 
admit  copyholders  and  bills  to  reverse 
erroneous  judgments  in  copyhold 
courts.     Vide  1  Mad.  Ch,  242  to  253. 

4th.  Infants. — The  protection  and 
care  which  the  court  of  chancery  ex- 
ercises over  infants  have  already  been 
incidentally  noticed.  Vide  1  book, 
chs.  XVI,  XVII,  and  notes. 

Wards  of  Court. — To  make  a  child 
a  ward  of  court,  it  is  sufficient  to  file 
a  bill ;  and  it  is  a  contempt  to  marry 
a  ward  of  court,  though  the  infant's 
father  be  living.  Ambl.  301.  The 
court  of  chancery,  representing  the 
king  as  parens  patriae,  has  jurisdic- 
tion    to    control    the    right    of    the 


638 


Proceedings  in  Equity. 


[Book  III. 


father  to  the  possession  of  his  in- 
fant; but  the  court  of  K.  B.  has  not 
any  portion  of  that  delegated  author- 
ity. The  court  of  chancery  will  re- 
strain the  father  from  removing  hia 
child,  or  doing  any  act  towards  re- 
moving it  out  of  the  jurisdiction.  So 
will  the  court  refuse  the  possession 
of  the  child  to  its  mother,  if  she  has 
withdrawn  herself  from  her  husband. 
10  Ves,  52;  Co.  Lit.  89  (a),  n.  70; 
2  Fonb.  Tr.  Eq.  224,  n.  (a)  ;  2  Bro. 
C.  C.  499;  1  P.  W.  705;  4  Bro.  C.  C. 
101;  2  P.  W.  102.  The  court  retains 
its  jurisdiction  over  the  property  of 
a  ward  of  court  after  21,  if  it  re- 
mains in  court;  and  if  the  ward  mar- 
ries, will  order  a  proper  settlement 
to  be  made,  or  reform  an  improper 
one,  unless  the  ward  consents  to  the 
settlement  either  in  court  or  under 
a  commission.  2  Sim.  &  Stu.  123,  n. 
(a).  In  case  the  husband  assign  the 
property  of  the  wife,  who  is  a  ward  of 
court,  it  shall  not  prevail,  but  the 
court  will  direct  even  the  whole  of 
the  property  in  question  to  be  settled 
on  the  wife  and  her  children,  and  the 
assignee  will  not  be  entitled  even  to 
the  arrear  of  interest  accrued  since 
the  marriage.     3  Ves.  506. 

5th.  Specific  Performance  of 
Agreements. — The  jurisdiction  of  the 
courts  of  equity,  in  matters  of  this 
kind,  though  certainly  as  ancient  as 
the  reign  of  Edward  IV.,  did  not  ob- 
tain an  unresisting  and  uniform  ac- 
quiescence on  the  part  of  the  public 
till  many  years  afterwards.  See  1 
Roll.  Rep.  354;  2  ib.  443;  Latch.  172. 

Realty.  —  Thus  equity  enforces 
agreements  for  the  purchase  of  lands, 
or  things  which  relate  to  realties,  but 
not  (generally)  those  which  relate  to 
personal  chattels,  as  the  sale  of  stock, 
corn,  hops,  etc.,  in  such  cases  the  rem- 
edy is  at  law.  3  Atk.  383;  Newl. 
Cont.  87. 


That  which  is  agreed  to  bo  done  i» 
in  equity  considered  as  already  done 
(2,  P.  W.  222);  and  therefore  when 
a  husband  covenants  on  his  marriage 
to  make  a  settlemtnt  charged  upon 
his  lands,  which  he  is  afterwards  pre- 
vented from  completing  by  sudden 
d^-ath,  the  heir  shall  make  satisfaction 
of  the  settlement  out  of  the  estate. 
Ib.„  233. 

Personalty. —  In  agreements,  with 
penalties  for  the  breach  of  them,  it 
is  necessary  to  distinguish  the  case* 
of  a  penalty  intended  as  a  security, 
for  a  collateral  object,  from  those 
where  the  contract  itself  has  assessed 
the  damages  which  the  party  is  to 
pay,  upon  his  doing  or  omitting  to 
do  the  particular  act.  In  these  latter 
cases,  equity  will  not  iiiterfere  either 
to  prevent  or  to  enforce  the  act  in 
question,  or  to  restrain  the  recovery 
of  damages  after  they  have  become 
due.  But  in  the  former,  where  it 
plainly  appears  that  the  specific  per- 
formance of  that  act  was  the  primary 
object  of  the  agreement,  and  the  pen- 
alty intendid  merely  to  operate  as  a 
collateral  security  for  its  being  done, 
though  at  law  the  party  might  make 
his  election,  either  to  do  the  partic- 
ular act  or  to  pay  the  penalty,  a 
court  of  equity  will  not  pi-rmlt  hin» 
to  exercise  suoli  right,  but  will  com- 
pel him  to  perform  the  object  of  the 
agreement.  Xewl.  Cont.  cap.  17. 
Thus,  as  the  principle  whereon  a  spe- 
cific performance  of  agreement  relat- 
ing to  personals  is  refused,  is.  that 
there  is  as  complete  a  remedy  to  W 
obtained  at  law,  therefore,  where  a 
party  sues  merely  on  a  memorandum, 
of  agreement  (a  mere  memorandum 
not  being  regarded  as  valid  at  law*. 
a  court  of  equity  will  give  relief,  for 
equity  sufTers  not  a  right  to  be  with- 
out a  remedy.  3  Atk.  382.  385.  .Kiit 
it  is  only   where  the  legal   remedy   is- 


Chap.  XXVII.]       Pkoceedings  iisr  Equity. 


639 


inadequate  or  defective,  that  courts 
of  equity  interfere.  8  Ves.  163. 
Equity  will  not  enforce  an  agreement 
for  the  transfer  of  stock  ( 10  Ves. 
161) ;  but  it  has  been  held  that  a  bill 
will  lie  for  performance  of  agreement 
for  purchase  of  government  stock, 
wliere  it  prays  for  the  delivery  of  the 
certificates  which  give  the  legal  title 
to  stock.  1  Sim.  &  Stu.  590.  And 
it  seems  the  court  will  entertain  a 
suit  for  the  specific  performance  of 
a  contract  for  the  purchase  of  a  debt. 
5  Price,  325.  So  to  sell  the  goodwill 
of  a  trade,  and  the  exculsive  use  of  a 
secret  in  dyeing  (1  Sim.  &  Stu.  74)  ; 
but  not  without  great  caution.  See 
1  P.  Wms.  181. 

6th.  Trusts. — Trusts  may  be  cre- 
ated of  real  or  personal  estate,  and 
are  either,  1st,  Express;  or,  2d,  Im- 
piled.  Under  the  head  of  implied 
trusts  may  be  included  all  resulting 
trusts,  and  all  such  trusts  as  are  not 
express.  Express  trusts  are  created 
by  deed  or  will.  Implied  trusts  arise, 
in  general,  by  construction  of  law, 
upon  the  acts  or  situation  of  parties. 
1  Mad.  Cha.  446. 

Lunatics. — The  custody  of  the  per- 
sons and  estates  of  lunatics  was  a 
power  not  originally  in  the  crown, 
but  was  given  to  it  by  statute,  for 
the  benefit  of  the  subject.  1  Ridgw. 
P.  C.  224,  et  vid.  2  Inst.  14.  And 
now,  by  the  statute  de  prerogativa 
regis  (17  Edw.  II.,  c.  9  &  10),  the 
king  shall  have  the  real  estates  of 
idiots  to  his  own  use,  and  he  shall 
provide  for  the  safe  keeping  of  the 
real  estates  of  lunatics,  so  that  they 
shall  have  a  competent  maintenance, 
and  the  residue  is  to  be  kept  for  their 
use.  1  Ridg.  P.  C.  519,  535.  A  lib- 
eral application  of  the  property  of  a 
lunatic  is  made  to  secure  every  com- 
fort his  situation  will  admit   (6  Ves. 


8).  without  regard  to  expectants  on 
estate.  1  Ves.  J.  297.  The  power  of 
the  chancellor  extends  to  making 
grants  from  time  to  time  of  the  luna- 
tic's estate,  and  as  this  power  is  de- 
rived under  the  sign  manual,  in  virtue 
of  the  prerogative  of  the  crown,  the 
chancellor,  who  is  usually  invested 
with  it,  is  responsible  to  the  crown 
alone  for  the  right  exercise  of  it,  per 
Ld.  Hardw.  3  Atk.  635.  It  is  said, 
that  since  the  revolution  the  king  has 
always  granted  the  surplus  profits. of 
the  estate  of  an  idiot  to  some  of  his 
family.     Ridgw.  P.  C.  519,  App.  note 

(1). 

Charities. — The  general  controlling 
power  of  the  court  over  charities,  does 
not  extend  to  a  charity  regulated  by 
governors  under  a  charter,  unless  they 
have  also  the  management  of  the  rev- 
enues, and  abuse  their  trust;  which 
will  not  be  presumed,  but  must  be  ap- 
parent, and  mad?  out  by  evidence.  2 
Ves.  J.  42.  The  internal  management 
of  a  charity  is  the  exclusive  subject 
of  visitorial  jurisdiction;  but  under 
a  trust  as  to  the  revenue,  abuse  by 
misapplication  is  controlled  in  chan- 
cery.   2  Ves.  &  B.  134. 

Executors. — Where  an  executor  has 
an  express  legacy,  the  court  of  chan- 
cery looks  upon  him  as  a  trustee  with 
regard  to  the  surplus,  and  will  make 
him  account,  though  the  spiritual 
court  has  no  such  power.  1  P.  W.  7. 
And  where  an  executor,  who  was  di- 
rected to  lay  out  the  testator's  per- 
sonalty in  the  funds,  unnecessarily 
sold  out  stock,  kept  large  balances  in 
his  hand,  and  resisted  payment  of 
debts  by  false  pretences  of  outstand- 
ing demands,  he  was  charged  with  five 
per  cent,  interest  and  costs,  but  the 
court  refused  to  make  rests  in  the 
account.  1  Jac.  &  W.  586.  And  s  e 
on  this  subject,  ante,  2  book,  ch.  32. 


640 


pEOCEEDIiyGS    IN   EqUITT. 


[BoOKlfi. 


Marshalling  Assets. — The  testator's 
whole  personal  property,  whether  de- 
vised or  not,  is  assets  both  in  law 
and  equity,  to  which  creditors  by  sim- 
ple contract,  or  of  any  higher  order, 
may  have  recourse  for  the  satisfac- 
tion of  their  demands.  But  the  tes- 
tator may,  by  clear  and  explicit 
words,  exempt  his  personalty  from 
payment  of  debts  as  against  the  de- 
visee of  his  realty,  though  not  as 
against  creditors.  The  rule  in  equity 
is,  that  in  case  even  of  a  specialty 
debt,  the  personal  assets  shall  be  first 
applied,  and  if  deficient,  and  there  be 
no  devise  for  payment  of  debts,  the 
heir  shall  then  be  charged  for  assets 
descended.  2  Atk.  426,  434,  For 
lands  are  in  equity  a  favoured  fund, 
insomuch  that  the  heir  at  law,  or 
devisee  of  a  mortgagor,  may  demand 
to  have  the  estate  mortgaged  by  such 
devisor  himself,  cleared  out  of  the  per- 
sonalty. Vin.  Ab.  tit.  Heir,  U.  pi, 
35;  1  Atk.  487.  And  a  specific  dev- 
isee of  a  mortgaged  estate  is  entitled 
to  have  it  exonerated  out  of  real  as- 
sets descended.  3  Atk.  430,  439.  But 
at  law  there  is  no  such  distinction 
of    favour    shewn   to    lands;    a   bond 


creditor  may,  if  he  please,  proceed 
immediately  against  the  heir,  without 
suing  the  personal  representative  of 
his  deceased  debtor.  As  to  the  order 
in  which  real  assets  shall  be  applied 
in  equity  for  payment  of  debts  (after 
exhausting  the  personal  effects,  sup- 
posing them  not  exempted),  the  gen- 
eral rule  is,  first,  to  take  lands  de- 
vised simply  for  that  purpose,  then 
lands  descended,  and  lastly  estates 
specifically  devised,  even  though  they 
are  generally  charged  with  the  pay- 
ment of  debts.     2  Bro.  263. 

Equitable  assets  are  such  as  at  law 
cannot  be  reached  by  a  creditor,  as 
a  devise  in  trust  to  pay  debts,  of  an 
eqiiity  of  redemption  subject  to  a 
mortgage  in  fee,  or  where  the  descent 
is  broke  by  a  devise  to  sell  for  the 
payment  of  debts.  1  Vern.  411;  1  Ch. 
Ca.  128  n.;  2  Atk.  290.  But  lands 
so  devised,  subject  to  a  mortgage  for 
years,  are  legal  assets. 

Bankruptcy. — See  the  consolidation 
act,  6  Geo.  IV.,  c.  16,  commencing  its* 
operation  with  the  present  year,  and 
the  decisions  applicable  to  its  several 
enactments,  ante,  2  book,  ch.  31,  in 
notes. 


BOOK  THE   FOURTH. 


OF  PUBLIC  WRONGS. 


CHAPTER  1. 

OF   THE   NATURE   OF   CRIMES   AND   THEIR   PUNISHMENT. 

I.  A  crime  or  misdemeanor  is  an  act  committed  or  omitted 
in  violation  of  a  public  law  either  forbidding  or  command- 
ing it.  [5] 

The  distinction  of  public  wrongs  from  private,  of  crimes 
and  misdemeanors  from  civil  injuries,  seems  principally  to 
consist  in  this:  that  private  wrongs  or  civil  injuries  are  an 
infringement  or  privation  of  the  civil  rights  which  belong 
to  individuals  considered  merely  as  individuals;  public 
w^rongs  or  crimes  and  misdemeanors  are  a  breach  and  vio- 
lation of  the  public  rights  and  duties  due  to  the  whole 
community  considered  as  a  community  in  its  social  aggre- 
gate capacity.  In  all  cases  the  crime  includes  an  injury 
[tort].  Every  public  offence  is  also  a  private  wrong  and 
somewhat  more;  it  affects  the  individual,  and  it  likewise 
affects  the  community.  In  these  gross  and  atrocious  in- 
juries [treason,  murder,  robbery]  the  private  wrong  is 
swallowed  up  in  the  public.  Indeed,  as  the  public  crime 
is  not  otherwise  avenged  than  by  forfeiture  of  life  and 
property,^  it  is  impossible  afterwards  to  make  any  repara- 
tion for  the  private  wrong,  which  can  only  be  had  from  the 
body  or  goods  of  the  aggressor.  [6]  But  there  are  crimes 
of  an  inferior  nature,  in  which  the  j)ublic  punishment  is  not 
so  severe;  but  it  affords  room  for  a  private  compensation 
also,  and  herein  the  distinction  of  crimes  from  civil  injuries 
is  very  apparent.     For  instance,  in  the  case  of  battery,  or 

1,  See  later  on  as  to  forfeiture. 

41  [641] 


642  Nature  of  Chimes.  [Book  IV. 

beating  another,  the  aggressor  may  be  indicted  for  this  at 
the  suit  of  the  king  for  disturbing  the  public  peace,  and 
be  punished  criminally  by  fine  and  imprisonment;  and  the 
party  beaten  may  also  have  his  private  remedy  by  action 
of  trespass  for  the  injury  which  he  in  particular  sustains, 
and  recover  a  civil  satisfaction  in  damages.  So,  also,  in 
case  of  a  public  nuisance,  as  digging  a  ditch  across  a  high; 
way,  this  is  punishable  by  indictment  as  a  common  offence 
to  the  whole  kingdom  and  all  his  majesty's  subjects;  but  if 
any  individual  sustains  any  special  damage  thereby,  as 
laming  his  horse,  breaking  his  carriage,  or  the  like,  the 
offender  may  be  compelled  to  make  ample  satisfaction,  as 
well  for  the  private  injury  as  for  the  public  wrong.^   [7] 

11.  [As  to  the  power,  the  end,  and  the  measure  of  human  punishment, 
th*  student  is  referred  to  the  text,  p.  7  et  seg.}  3 

2.  See  Clark's  Crim.  Law  (2d  Ed.),  modern    times    it  has   been    greatly 
1-7.  ameliorated  both  in  England  and  the 

3.  The  English  law  in  the  time  of  United    States.      Consult    the    local 
our  author  was  very  sanguinary.    In  statutes. 


Chap.  II.]     Persons  Capable  of  Committing  Ceimes.         643 

CHAPTER  IT. 

OF  THE  PERSONS  CAPABLE  OF  COMMITTING  CRIMES. 

The  general  rule  is  that  no  person  shall  be  excused  from 
punishment  for  disobedience  to  the  laws  of  his  country, 
excepting  such  as  are  expressly  defined  and  exempted  by 
the  laws  themselves.   [20] 

All  the  several  pleas  and  excuses  which  protect  the  com- 
mitter of  a  forbidden  act  from  the  punishment  which  is 
otherwise  annexed  thereto  may  be  reduced  to  this  single 
consideration,  the  want  or  defect  of  will.  To  make  a  com- 
plete crime  cognizable  by  human  laws,  there  must  be  both 
a  will  and  an  act.  [21]  In  all  temporal  jurisdictions  an 
overt  act,  or  some  open  evidence  of  an  intended  crime,  is 
necessary  in  order  to  demonstrate  the  depravity  of  the  will 
before  the  man  is  liable  to  punishment.  And  as  a  vicious 
will  without  a  vicious  act  is  no  civil  crime,  so,  on  the  other 
hand,  an  unwarrantable  act  without  a  vicious  will  is  no 
crime  at  all.  So  that  to  constitute  a  crime  against  human 
laws  there  must  be  first,  a  vicious  will,  and  secondly,  an 
unlawful  act  consequent  upon  such  vicious  will.^ 

Now  there  are  three  cases  in  which  the  will  does  not  join 
with  the  act:  1.  Where  there  is  a  defect  of  understanding. 
2.  Where  there  is  understanding  and  will  sufficient  residing 
in  the  party,  but  not  called  forth  and  exerted  at  the  time 
of  the  action  done,  which  is  the  case  of  all  offences  commit- 
ted by  chance  or  ignorance.  Here  the  will  sits  neuter,  and 
neither  concurs  with  the  act  nor  disagrees  to  it.  3.  Where 
the  action  is  constrained  by  some  outward  force  and  vio- 
lence. Here  the  will  counteracts  the  deed,  and  is  far  from 
concurring  with,  that  it  loathes  and  disagrees  to  what  the 
man  is  obliged  to  perform. 

I.  First,  infancy  or  nonage,  which  is  a  defect  of  the  un- 
derstanding. [22]  Infants  under  the  age  of  discretion 
ought  not  to  be  punished  by  any  criminal  prosecution  what- 
ever.    The  law  of  England  does  in  some  cases  privilege  an 

It  Clark's  Crim.  Law   (2d  Ed.),  14. 


644         Persons  Capable  of  CoMMiTTmo  Crimes.     [Book  IV. 

infant  under  the  age  of  twenty-one  as  to  common  misde- 
meanors, so  as  to  escape  fine,  imprisonment,  and  the  like, 
and  particularly  in  cases  of  omission,  as  not  repairing  a 
bridge  or  highway,  and  other  similar  offences;  for,  not  hav- 
ing the  command  of  his  fortune  till  twenty-one,  he  wants 
the  capacity  to  do  those  things  which  the  law  requires. 
But  where  there  is  any  notorious  breach  of  the  peace, —  a 
riot,  battery,  or  the  like  (which  infants  when  full  grown  are 
at  least  as  liable  as  others  to  commit), —  for  these  an  infant 
above  the  age  of  fourteen  is  equally  liable  to  suffer  as  a  per- 
son of  the  full  age  of  twenty-one.^   [23] 

With  regard  to  capital  crimes,  the  law  is  still  more  minute 
and  circumspect.  By  the  law  as  it  now  stands  and  has 
stood  at  least  ever  since  the  time  of  Edward  III.  the  capa- 
city of  doing  ill  or  contracting  guilt  is  not  so  much  measured 
by  years  and  days  as  by  the  strength  of  the  delinquent's 
understanding  and  judgment;  for  one  lad  of  eleven  years 
old  may  have  as  much  cunning  as  another  of  fourteen;  and 
in  these  cases  our  maxim  is  that  ''malitia  supplet  aetatem." 
Under  seven  years  of  age,  indeed,  an  infant  cannot  be  guilty 
of  felony,  for  then  a  felonious  discretion  is  almost  an  im- 
possibility in  nature;  but  at  eight  years  old  he  may  be  guilty 
of  felony .=^  Also  under  fourteen,  though  an  infant  shall  be 
prima  facie  adjudged  to  be  doll  incapaj-,'jet  if  it  appear  to 
the  court  and  jury  that  he  was  doll  capaw,  and  could  discern 
between  good  and  evil,  he  may  be  convicted  and  suffer 
death.  But  in  ail  such  cases  the  evidence  of  that  malice 
which  is  to  supply  age  ought  to  be  strong  and  clear  beyond 
all  doubt  and  contradiction.^ 

II.  The  second  case  of  a  deficiency  in  will  which  excuses 
from  the  guilt  of  crimes  arises  also  from  a  defective  or 
vitiated  understanding,  viz.,  in  an  idiot  or  a  lunatic."     In 

2.  Wash.  tr.  L.   (3d  Ed.)    19.  Law,   59,  and   the  local   statutes.     If 

3.  The  ages  of  criminal  capacity  are  the    rule    has    not    been    changed    by 
variously     fixed    by    statute    in    the  statute,  the  common  law  prevails. 
United  States.     In  Illinois  an  infant  4.  See  preceding  note. 

under    ten    years    of    age    cannot    be  5.  The  general  rule  in  England  and 

found  guilty  of  any  crime.  Rev.  Stat.  this  country  is  that  if  a  person  is 
111.  1874,  334,  §  283;  see  Clark's  Crim.      incapable  by  reason  of  idiocy  or  lun- 


Chap.  II.]     Persons  Capable  of  Committing  Ckimes.         645 

criminal  cases  idiots  and  lunatics  are  not  chargeable  for 
their  own  acts  if  committed  when  under  these  incapacities; 
no,  not  even  for  treason  itself.  Also,  if  a  man  in  his  sound 
memory  commits  a  capital  offence,  and  before  arraignment 
for  it  he  becomes  mad,  he  ought  not  to  be  arraigned  for  it, 
because  he  is  not  able  to  plead  to  it  with  that  advice  and 
caution  that  he  ought.  And  if  after  he  has  pleaded  the 
prisoner  becomes  mad,  he  shall  not  be  tried;  for  how  can  he 
make  his  defence  ?  If  after  he  be  tried  and  found  guilty  he 
loses  his  senses  before  judgment,  judgment  shall  not  be 
pronounced,  and  if  after  judgment  he  becomes  of  nonsane 
memory,  execution  shall  be  stayed.  But  if  there  be  any 
doubt  whether  the  party  be  compos  or  not,  this  shall  be 
tried  by  a  jury.  [25]  And  if  he  be  so  found,  a  total  idiocy 
or  absolute  insanity  excuses  from  the  guilt,  and  of  course 
from  the  punishment  of  any  criminal  action  committed  un- 
der such  deprivation  of  the  senses;  but  if  a  lunatic  hath 
lucid  intervals  of  understanding,  he  shall  answer  for  what 
he  does  in  those  intervals  as  if  he  had  no  deficiency. 

III.  Thirdly,  as  to  artificial,  voluntarily  contracted  mad- 
ness, by  drunkenness  or  intoxication,  which,  depriving  men 
of  their  reason,  puts  them  in  a  temporary  frenzy,  our  law 
looks  upon  this  as  an  aggravation  of  the  offence  rather  than 
as  an  excuse  for  any  criminal  misbehavior.^   [26] 

IV.  A  fourth  deficiency  of  will  is  where  a  man  commits 

acy  of  distinguishing  between  right  settled  insanity  or  delirium  tremens 
and  wrong  as  to  the  particular  act,  resulting  from  intoxication.  Clark's 
he  lacks  criminal  capacity.  Clark's  Crim.  Law  (2d  Ed.),  70.  (2)  Where 
Crim.  Law  {2d  Ed.),  61  and  cases  a  specific  intent  constitutes  an  essen- 
cited.  McNaghten's  Case,  10  Clark  tial  element  of  the  crime,  intoxica- 
&  Fin.  200,  established  this  rule,  tion  may  negative  such  intent.  Id., 
This  rule  has  not  always  been  ap-  70;  Roberts  v.  The  People,  19  Mich, 
proved.  See  Clark's  Crim.  Law,  65  401;  Schwabacher  v.  People,  165  III. 
and  note  (irresistable  impulse);  618.  (3)  In  murder  intoxication  may 
Scott  V.  Com.,  4  Met.  (Ivy.)  227  (mo-  (if  proved)  be  material  as  to  the 
ral  insanity).  See,  also.  Parsons  v.  question  of  provocation  and  thus  re- 
State,  81  Ala.  577.  duce  the  crime  to  manslaughter. 
6.  Clark's  Crim.  Law  (2d  Ed.),  70.  Clark's  Crim.  Law,  70.  Intoxication 
There  are  three  exceptions  to  this  dees  not,  however,  aggravate  the  of- 
rule:  (1)  Where  the  act  is  com-  fence.  Id. 
mitted    while    accused    labors    under  > 


6415         Persons  Capable  of  Committing  Crimes.     [Book  TV. 

an  unlawful  act  by  misfortune  or  chance,  and  not  by  design. 
Here  the  will  observes  a  total  neutrality,  and  does  not  co- 
operate with  the  deed,  which  therefore  wants  one  main 
ingredient  of  a  crime.  If  any  accidental  mischief  happens 
to  follow  from  the  performance  of  a  Imvful  act  [in  a  lawful 
manner],  the  party  stands  excused  from  all  guilt ;^  but  if  a 
man  be  doing  anythin  unlaivful  [and  morally  wrong,  not 
merely  malum  prohibitum^,  and  a  consequence  ensues  which 
he  did  not  foresee  or  intend,  as  the  death  of  a  man  or  the 
like,  his  want  of  foresight  shall  be  no  excuse,  for,  being 
guilty  of  one  offence  in  doing  antecedently  what  is  in  itself 
unlawful,  he  is  criminally  guilty  of  whatever  consequence 
may  follow  the  first  misbehavior.^   [27] 

V.  Fifthly,  ignorance  or  mistake  is  another  defect  of  will, 
when  a  man  intending  to  do  a  lawful  act  does  that  which  is 
unlawful.  For  here,  the  deed  and  the  will  acting  sepa- 
rately, there  is  not  that  conjunction  between  them  which  is 
necessary  to  form  a  criminal  act.^  But  this  must  be  an 
ignorance  or  mistake  of  fact  and  not  an  error  in  point  of 
law.  As  if  a  man,  intending  to  kill  a  thief  or  housebreaker 
in  his  own  house,  by  mistake  kills  one  of  his  own  family, 
this  is  no  criminal  action;^  but  if  a  man  thinks  he  has  a 
right  to  kill  a  person  excommunicated  or  outlawed  wherever 
he  meets  him,  and  does  so,  this  is  wilful  murder.  For  a  mis- 
take in  point  of  law  which  every  person  of  discretion  not 
only  may  but  is  bound  and  presumed  to  know,  is  in  criminal 
cases  no  sort  of  defence.  Ignorantia  juris,  quod  quisque 
tenetur  scire,  neminem  excusat,^  is  as  well  the  maxim  of  our 
own  law  as  it  was  of  the  Roman. 

VI.  A  sixth  species  of  defect  of  will  is  that  arising  from 
compulsion  and  inevitable  necessity.  These  are  a  con- 
straint upon  the  will,  whereby  a  man  is  urged  to  do  that 

7.  Clark's  Crim,  Law,  176.  application  to  crime.   Milton  v.  State, 

8.  Negligence     may     be     criminal.  24  So.  Rep.    (Fla.)    60. 
Clark's  Crim.  Law,  55.    This  question  1.  Clark's  Crim.  Law,  82,  83. 
most  commonly  arises  in  prosecutions  2.  Ignorance  of  the  law  which  every 
for  manslaughter.     Id.  one  is  bound  to  know,  excuses  no  one. 

9.  Clark's  Crim.  Law,  56.    The  rule  Broom's  Leg.  Max.,  *231. 
of   the  Six   Carpenters'   Case  has  no 


Chap.  II.]     Persons  Capable  of  Committing  Crimes.         647 

which  his  judgment  disapproves,  and  which,  it  is  to  be  pre- 
sumed, his  will  (if  left  to  itself)  would  reject. 

1.  Of  this  nature,  in  the  first  place,  is  the  obligation  of 
civil  subjection,  whereby,  the  inferior  is  constrained  by  the 
superior  to  act  contrary  to  what  his  own  reason  and  inclina- 
tion would  suggest:  as  when  a  legislator  establishes  in- 
iquity by  a  law,  and  commands  the  subject  to  do  an  act 
<3ontrary  to  religion  or  sound  morality.   [28] 

As  to  persons  in  private  relations,  the  principal  case 
where  constraint  of  a  superior  is  allowed  as  an  excuse  for 
criminal  misconduct  is  with  regard  to  the  matrimonal  sub- 
jection of  the  wife  to  her  husband;  for  neither  a  son  nor  a 
servant  is  excused  for  the  commission  of  any  crime,  whether 
capital  or  otherwise,  by  the  command  or  coercion  of  the 
parent  or  master.  But  if  a  woman  commit  theft,  burglary, 
or  other  civil  offences  against  the  laws  of  society  by  the 
coercion  of  her  husband  or  even  in  his  company,  which  the 
law  construes  a  coercion,  she  is  [j)rima  facie]  not  guilty  of 
any  crime,  being  considered  as  acting  by  compulsion  and 
not  of  her  own  will.^  [29]  In  inferior  misdemeanors  also 
we  may  remark  another  exception,  that  a  wife  may  be  in- 
dicted and  set  in  the  pillory  with  her  husband  for  keeping  a 
brothel.  And  in  all  cases  where  the  wife  offends  alone, 
without  the  company  or  coercion  of  her  husband,  she  is 
responsible  for  her  offence  as  much  as  any  feme-sole. 

2.  Another  species  of  compulsion  or  necessity  is  what  our 
law  ^alls  duress  per  minas,  or  threats  and  menaces,  which 
induce  a  fear  of  death  or  other  bodily  harm,  and  which  take 
away  for  that  reason  the  guilt  of  many  crimes  and  misde- 

3.  This  presumption  may  of  course  rule    has    been    changed    by    statute, 

be  rebutted  by  evidence.     Murder  and  It   is   subject   to   exceptions   in  those 

treason  are  usually  stated  to  be  ex-  crimes   which   are   from  their   nature 

■ceptions  to  this   rule,   and  some  add  generally   committed  by  women  such 

robbery  also.     Clark's  Crim.  Law,  93  as  keeping  a  brothel  or  other  disor- 

and  cases  cited  in  notes.  derly    house    and    also    for    altering 

Mr.  Bishop  does  not  except  murder  counterfeit  coins.     1  Bish.  Crim.  Law 

and  treason.     1  Bish.  Crim.  Law   (7th  {7th  Ed.),  §  351;  Clark's  Crim.  I^w 

Ed.),   §  357  et  seq.     So  in  1  Whart.  (2d    Ed.),    93;    Com.   v.    Murphy,    2 

i^,.  L.,  §  71  et  seq.,  the  author  takes  Gray,  510;   Penal  Code  Minn.,   §  22; 

the   same   view.     In   some   states   the  Id.,  X.  Y     §  24. 


.648         Persons  Capable  of  Committing  Crimes.     [Book  IV. 

meanors.'*  [30]  But  then  tliat  fear  which  compels  a  man  - 
to  do  an  unwarrantable  action  ought  to  be  just  and  well- 
grounded;  such  "qui  cadere  possit  in  virum  constantem,  non 
iimidmn  et  meticulosum/-^  as  Bracton  expresses  it.  There- 
fore, in  time  of  war  or  rebellion,  a  man  may  be  justified  in 
doing  many  treasonable  acts  by  compulsion  of  the  enemy 
or  rebels,  which  would  admit  of  no  excuse  in  the  time  of 
peace.  This,  however,  seems  only,  or  at  least  principally, 
to  hold  as  to  positive  crimes  so  created  by  the  laws  of 
society,  and  which  therefore  society  may  excuse;  but  not 
as  to  natural  offences  so  declared  by  the  law  of  God,  wherein 
human  magistrates  are  only  the  executioners  of  divine  pun- 
ishment. And  therefore,  though  a  man  be  violently  as- 
saulted, and  hath  no  other  possible  means  of  escaping  death 
but  by  killing  an  innocent  person,  this  fear  and  force  shall 
not  acquit  him  of  murder,  for  he  ought  rather  to  die  himself 
than  escape  by  the  murder  of  an  innocent.  But  in  such  a 
case  he  is  permitted  to  kill  the  assailant,  for  there  the  law 
of  nature  and  self-defence,  its  primary  canon,  have  made 
him  his  own  protector. 

3.  There  is  a  third  species  of  necessity  w^iich  may  be  dis- 
tinguished from  the  actual  compulsion  of  external  force  or 
fear,  being  the  result  of  reason  and  reflection,  which  act 
upon  and  constrain  a  man's  will  and  oblige  him  to  do  an 
action  which  without  such  obligation  would  be  criminal, 
and  that  is  when  a  man  has  his  choice  of  two  evils  set  before 
him,  and,  being  under  a  necessity  of  choosing  one,  he 
chooses  the  least  pernicious  of  the  two.  [31]  Here  the  will 
cannot  be  said  freely  to  exert  itself,  being  rather  passive 
than  active,  or  if  active,  it  is  rather  in  rejecting  the  greater 
evil  than  in  choosing  the  less.  Of  this  sort  is  that  necessity 
where  a  man  by  the  commandment  of  the  law  is  bound  to 
arrest  another  for  any  capital  offence  or  to  disperse  a  riot, 
and  resistance  is  made  to  his  authority:  it  is  here  justifiable 
and  even  necessary  to  beat,  to  wound,  or  perhaps  to  kill  the 
offenders  rather  than  permit  the  murderer  to  escape  or  the 

4.  Duress,  however,  is  no  excuse  for  5.  Such  as  might  happen  to  a  brave 

murder.    Clark's  Crim.  Law  (2d  Ed.),      man   not  timid  and  fearful. 
91. 


Chap.  II.]     Persons  Capable  of  Committing  Crimes.         049 

riot  to  continue.  For  the  preservation  of  the  peace  of  the 
kingdorfi  and  tlie  apprehending  of  notorious  malefactors  are 
of  the  utmost  consequence  to  the  public,  and  therefore 
excuse  the  felony  which  the  killing  would  otherwise  amount 
to. 

4.  There  is  yet  another  case  of  necessity  which  has  oc- 
casioned great  speculation  among  the  writers  upon  general 
law,  viz.,  whether  a  man  in  extreme  want  of  food  or  clothing 
may  justify  stealing  either  to  relieve  his  present  necessities  ? 
And  this  both  Grotius  and  Puffendorf,  together  with  many 
other  of  the  foreign  jurists,  hold  in  the  affirmative.  But 
the  law  of  England  admits  no  such  excuse  at  present.® 

VII.  Seventh,  where  the  law  supposes  an  incapacity  of 
doing  wrong,  from  the  excellence  and  perfection  of  the 
person,  which  extend  as  well  to  the  will  as  to  the  other 
qualities  of  his  mind  [33] :  I  mean  the  case  of  the  king,  who, 
by  virtue  of  his  royal  prerogative,  is  not  under  the  coercive 
power  of  the  law,  which  will  not  suppose  him  capable  of 
committing  a  folly,  much  less  a  crime. 

6.  Clark's  Crim.  Law   (2d  Ed.),  95- 
97  and  cases  cited. 


650  Pkincipals  AND  Accessories.  [Book  IV. 

CHAPTER  III. 

OF  PEINCIPALS  AND  ACCESSARIES. 

I.  A  man  may  be  principal  in  an  offence  in  two  degrees. 

[34]  A  principal  in  the  first  degree  is  he  that  is  the  actor 
or  absolute  perpetrator  of  the  crime,  and  in  the  second  de- 
gree, is  he  who  is  present,  aiding  and  abetting  the  fact  to 
be  done.^  Which  presence  need  not  always  be  an  actual 
immediate  standing  by,  within  sight  or  hearing  of  the  fact, 
but  there  may  be  also  a  constructive  presence,  as  when  one 
commits  a  robbery  or  murder,  and  another  keeps  watch  or 
guard  at  some  convenient  distance.  And  this  rule  hath 
also  other  exceptions;  for  in  case  of  murder  by  poisoning,  a 
man  may  be  a  principal  felon  by  preparing  and  laying  the 
poison,  or  persuading  another  to  drink  it  who  is  ignorant 
of  its  poisonous  quality,  or  giving  it  to  him  for  that  purpose, 
and  yet  not  administer  it  himself  nor  be  present  when  the 
very  deed  of  poisoning  is  committed.  And  the  same  reason- 
ing will  hold  with  regard  to  other  murders  committed  in 
the  absence  of  the  murderer,  by  means  which  he  had  pre- 
pared beforehand,  and  which  probably  could  not  fail  of 
their  mischevious  effect.  .[35]  As  by  laying  a  trap  or  pit- 
fall for  another,  whereby  he  is  killed;  letting  out  a  wild 
beast  with  an  intent  to  do  mischief;  or  inciting  a  madman 
to  commit  murder,  so  that  death  thereupon  ensues,  —  in 
every  of  these  cases  the  party  offending  is  guilty  of  murder 
as  a  principal  in  the  first  degree. 

II.  An  accessary  is  he  who  is  not  the  chief  actor  in  the 
offence,  nor  present  at  its  performance,  but  is  some  way 
concerned  therein,  either  before  or  after  the  fact  committed. 

1.  As  to  what  offences  admit  of  accessaries,  and  what  not. 
In  high  treason  there  are  no  accessaries,  but  all  are  prin- 
cipals; the  same  acts  that  make  a  man  accessary  in  felony 
making  him  a  principal  in  high  treason,  upon  account  of 
the  heinousness  of  the  crime.    Besides,  it  is  to  be  considered 

1.  Clark's    Crim.    Law     (2d    Ed.), 
101,  102. 


CiiAp.  III.]  Pkincipals  and  Accessaries.  651 

that  the  bare  intent  to  commit  treason  is  many  times  actual 
treason,  as  imagining  the  death  of  the  king  or  conspiring 
to  take  away  his  crown.  And  as  no  one  can  advise  and 
abet  such  a  crime  without  an  intention  to  have  it  done,  there 
can  be  no  accessaries  before  the  fact,  since  the  very  advice 
and  abetment  amount  to  principal  treason.  [36]  But  this 
will  not  hold  in  the  inferior  species  of  high  treason,  which 
do  not  amount  to  the  legal  idea  of  compassing  the  death  of 
the  king,  queen,  or  prince.  For  in  those  no  advice  to 
commit  them,  unless  the  thing  be  actually  performed,  will 
make  a  man  a  principal  traitor.  In  petit  treason,  murder, 
and  felonies^  with  or  without  benefit  of  clergy,  there  may 
be  accessaries,  except  only  in  those  offenses  which  by  judg- 
ment of  law  are  sudden  and  unpremeditated,  as  manslaugh- 
ter and  the  like,  which  therefore  cannot  have  any  acces- 
saries before  the  fact.  So  too  in  petit  larceny  and  in  all 
crimes  under  the  degree  of  felony  there  are  no  accessaries 
either  before  or  after  the  fact,  but  all  persons  concerned 
therein,  if  guilty  at  all,  are  principals.^ 

2.  As  to  who  may  be  an  accessary  before  the  fact,  Sir 
Matthew  Hale  defines  him  to  be  one  who,  being  absent  at 
the  time  of  the  crime  committed,  doth  yet  procure,  counsel, 
or  command  another  to  commit  a  crime.  Herein  absence 
is  necessary  to  make  him  an  accessary;  for  if  such  a  pro- 
curer or  the  like  be  present,  he  is  guilty  of  the  crime  as 
principal.^  If  A  then  advise  B  to  kill  another,  and  B  does 
it  in  the  absence  of  A,  now  B  is  principal,  and  A  is  accessary 
in  the  murder.  [37]  And  this  holds  even  though  the  party 
killed  be  not  in  rerum  natura  at  the  time  of  the  advice  given. 
As  if  A,  the  reputed  father,  advises  B,  the  mother  of  a 

2.  The  distinction  between  princi-  if  one  incites  an  insane  person  or  an 
pals  and  accessories  is  recognized  in  idiot  or  an  infant  of  tender  years 
felony  only.  Clark's  Crim.  Law  (2d  who,  not  knowing  it  is  wrong,  ia 
Ed.  )j  100.  Petit  treason  does  not  ex-  thereby  induced  to  commit  an  act 
ist  in  the  United  States.  otherwise  a  crime,  the  person  so  pro- 

3.  Clark's  Crim.  Law  (2d  Ed.),  curing  the  act  to  be  done  is  a  princi- 
300.  pal.      Com.    v.    Hill,    11    Mass.    136; 

4.  Id.,  109.  If  one  sets  a  dog  upon  People  v.  McMurray,  4  Parker's  Cr. 
another  whom  he  bites,  he  is  the  prin-  Rep.  234. 

cipal   in  an   assault  and  battery;    so, 


C52  Principals  axd  Accessories.  [Book  IV, 

bastard  cliild,  unborn,  to  strangle  it  when  born,  and  she 
does  so,  A  is  accessary  to  this  murder.  And  it  is  also 
settled  that  whoever  procureth  a  felony  to  be  committed, 
though  it  be  by  the  intervention  of  a  third  person,  is  an 
accessary  before  the  fact.  It  is  likewise  a  rule  that  he  wlio 
in  any  wise  commands  or  counsels  another  to  commit  an 
unlawful  act  is  accessary  to  all  that  ensues  upon  that  un- 
lawful act,  but  is  not  accessary  to  any  act  distinct  from  the 
other.  And  if  A  commands  B  to  beat  C,  and  B  beats  him 
so  that  he  dies,  B  is  guilty  of  murder  as  principal,  and  A 
as  accessary.  But  if  A  commands  B  to  burn  C's  house,  and 
he  in  so  doing  commits  a  robbery,  now  A,  though  accessary 
to  the  burning,  is  not  accessary  to  the  robbery,  for  that  is 
a  thing  of  a  distinct  and  unconsequential  nature.  But  if 
the  felony  committed  be  the  same  in  substance  with  that 
which  is  Commanded,  and  only  varying  in  some  circum- 
stantial matters,  as  if,  upon  a  command  to  poison  Titius,  he 
is  stabbed  or  shot,  and  dies,  the  commander  is  still  accessary 
to  the  murder,  for  the  substance  of  the  thing  commanded 
was  the  death  of  Titus,  and  the  manner  of  its  execution  is 
a  mere  collateral  circumstance. 

3.  An  accessary  after  the  fact  may  be  where  a  person, 
knowing  a  felony  to  have  been  committed,  receives,  relieves, 
comforts,  or  assists  the  felon.  Therefore,  to  make  an  acces- 
sary cd?  post  facto  it  is  in  the  first  place  requisite  that  he 
knows  of  the  felony  committed.  In  the  next  place  he  must 
receive,  relieve,  comfort,  or  assist  him.  And  generally  any 
assistance  whatever  given  to  a  felon,  to  hinder  his  being 
apprehended,  tried,  or  suffering  punishment,  makes  the  as- 
sister  an  accessary.  As  furnishing  him  with  a  horse  to 
escape  his  pursuers,  money  or  victuals  to  support  him,  a 
house  or  other  shelter  to  conceal  him,  or  open  force  and 
violence  to  rescue  or  protect  him.  [38]  So  likewise  to 
convey  instruments  to  a  felon  to  enable  him  to  break  gaol, 
or  to  bribe  the  gaoler  to  let  him  escape,  makes  a  man  an 
accessary  to  the  felony.^  But  to  relieve  a  felon  in  gaol  with 
clothes  or  other  necessaries  is  no  offence,  for  the  crime  im- 

5.  Clark's    Crim.    Law     (2d    Ed.), 
113. 


Chap.  111.]  Pjuncipals  and  Accessaries.  653 

putable  to  this  species  of  accessary  is  the  hinderance  of 
public  justice,  by  assisting  the  felon  to  escape  the  vengeance 
of  the  law.  To  buy  or  receive  stolen  goods,  knowing  them 
to  be  stolen,"  falls  under  none  of  these  descriptions:  it  was 
therefore  at  common  law  a  mere  misdemeanor,  and  made 
not  the  receiver  accessary  to  the  theft,  because  he  received 
the  goods  only,  and  not  the  felon;  but  now,  by  the  statutes 
5  Anne,  c.  31,  and  4  Geo.  I.  c.  11,  all  such  receivers  are  made 
accessaries. 

The  felony  must  be  complete  at  the  time  of  the  assistance 
given,  else  it  makes  not  the  assistant  an  accessary.  As  if 
one  wounds  another  mortally,  and  after  the  wound  given, 
but  before  death  ensues,  a  person  assists  or  receives  the 
delinquent,  this  does  not  make  him  accessary  to  the  homi- 
cide, for  till  death  ensues  there  is  no  felony  committed. 
But  so  strict  is  the  law  where  a  felony  is  actually  complete, 
in  order  to  do  effectual  justice,  that  the  nearest  relations 
are  not  suffered  to  aid  or  receive  one  another.  If  the  parent 
assists  his  child,  or  the  child  the  parent,  if  the  brother  re- 
ceives the  brother,  the  master  his  servant,  or  the  servant 
his  master,  or  even  if  the  husband  relieves  his  wife,  who 
have  any  of  them  committed  a  felony,  the  receivers  become 
accessaries  ex  post  facto.  [39]  But  a  feme-covert  cannot 
become  an  accessary  by  the  receipt  and  concealment  of  her 
husband ;  for  she  is  presumed  to  act  under  his  coercion,  and 
therefore  she  is  not  bound,  neither  ought  she,  to  discover 
her  lord. 

4.  How  are  accessaries  to  be  treated  considered  distinct 
from  principals. 

And  the  general  rule  of  the  ancient  law  is  this,  that  accessaries  shall 
suffer  the  same  punishment  as  their  principals. 

[The  reasons  for  the  elaborate  distinctions  between  ac- 
cessaries and  principals  are]  (1)  to  distinguish  the  nature 
and  denomination  of  crimes,  that  the  accused  may  know 

6.  It  is  now  by  statute  made  a  sub-  See,   generally,    on    the    subject   of 

stantive    crime    in    itself.      McClain's  Principal  and  Accessory,  the  case  of 

Orim.  Law,  §  713;  Clark's  Crim.  Law,  Spies  v.  The  People,   122  III.   1    (the 

327.  so-called  anarchist  case). 


654  Principals  and  Accessories.     '      [Book  IV. 

how  to  defend  himself  when  indicted;  the  commission  of 
an  actual  robbery  being  quite  a  different  accusation  from 
that  of  harboring  the  robber. 

(2)  Because  now  by  the  statutes  relating  to  the  benefit  of  clergy,  dis- 
tinction is  made  between  them;  accessaries  after  the  fact  being  still 
allowed  the  benefit  of  clergy  in  all  cases,  except  horse-stealing  and  steal- 
ing of  linen  from  bleaching-grounds. 

(3)  Because  formerly  no  mjin  could  be  tried  as  accessary 
till  after  the  principal  was  convicted,  or  at  least  he  must 
have  been  tried  at  the  same  time  with  liim;^  though  that 
law  is  now  much  altered,  as  will  be  shown  more  fully  in  its 
proper  place.  [40]  (4)  Because,  though  a  man  be  indicted, 
as  accessary  and  acquitted,  he  may  afterwards  be  indicted 
as  principal,  for  an  acquittal  of  receiving  or  counselling  a 
felon  is  no  acquittal  of  the  felony  itself;  but  it  is  matter  of 
some  doubt  whether,  if  a  man  be  acquitted  as  principal,  he 
can  be  afterwards  indicted  as  accessary  before  the  fact, 
since  those  offences  are  frequently  very  nearly  allied,  and 
therefore  an  acquittal  of  the  guilt  of  one  may  be  an  acquittal 
of  the  other  also.  But  it  is  clearly  held  that  one  acquitted 
as  principal  may  be  indicted  as  an  accessary  after  the  fact, 
since  that  is  always  an  offence  of  a  different  species  of  guilt, 
principally  tending  to  evade  the  public  justice,  and  is  sub- 
sequent in  its  commencement  to  the  other. 

7.  Clark's  Crim.  Law  (2d  Ed.),  115.      Wash.  Crim.  Law   (3d  Ed.),  162  and 
But    this   rule   has  been  changed   by      cases  cited, 
statute   in  most  of  the  states.     Id.; 


Chap.  IV.]     Offences  against  God  and  Eeligion.  655 


CHAPTER  IV.  ■  . 

OF  OFFENCES  AGAINST  QOJ>  AND  EELIGION. 

[Apostasy,   bersy,  and   offences   affecting  an   established   chnrch   are 

offences  happily  unknown  to  the  American  law,  and  hence  are  omitted.] 

IV.  The  fourth  species  of  offences  more  immediately 
against  God  and  religion  is  that  of  blasphemy  against  the 
Almighty  by  denying  his  being  or  providence,  or  by  con- 
tumelious reproaches  of  our  Saviour  Christ.  [59]  Whither 
also  may  be  referred  all  profane  scoffing  at  the  holy  scrip- 
ture, or  exposing  it  to  contempt  and  ridicule.  These  are 
offences  punishable  at  common  law  by  fine  and  imprison- 
ment, or  other  infamous  corporal  punishment;  for  Chris- 
tianity is  part  of  the  laws  of  England.^ 

V.  Somewhat  allied  to  this,  though  in  an  inferior  degree, 
is  the  offence  of  profane  and  common  swearing  and  curs- 
ing.2  [60]  By  the  last  statute  against  which,  19  Geo.  II.  c. 
21,  which  repeals  all  former  ones,  every  laborer,  sailor,  or 
soldier  profanely  cursing  or  swearing  shall  forfeit  Is.,  every 
other  person  under  the  degree  of  a  gentleman  2s.,  and  every 
gentleman  or  person  of  superior  rank  5s.  to  the  poor  of  the 
parish,  and  on  the  second  conviction  double,  and  for  every 
subsequent  offence  treble  the  sum  first  forfeited,  with  all 
charges  of  conviction,  and  in  default  of  payment  shall  be 
sent  to  the  house  of  correction  for  ten  days. 

VI.  A  sixth  species  of  offence  against  God  and  religion,  of  which  our 
ancient  books  are  full,  is  the  offence  of  witchcraft,  conjuration,  enchant- 
ment, or  sorcery.  [Obsolete.] 

VII.  A  seventh  species  of  offenders  in  this  class  are  all 
religious  impostors,  such  as  falsely  pretend  an  extraordi- 
nary commission  from  heaven,  or  terrify  and  abuse  the 
people  with  false  denunciations  of  judgments.  [62]  These, 
as  tending  to  subvert  all  religion  by  bringing  it  into  ridicule 

1.  Thi3   is   true  only   in   a   limited  2.  Made    misdemeanors    by   statute 

sense.       See    discussion     in     Cooley's      in  some  states. 
Const.  Lira.   (7th  Ed.),  670  et  seq. 


656  Offences  against  God  and  Religion.     [Book  IV. 

and  contempt,  are  punishable  by  tlie  temporal  courts  with 
fine,  imprisonment,  and  infamous  corporal  punishment. 

VIII.  Simony,  or  the  corrupt  presenitation  of  any  one  to  an  ecclesias- 
tical benefice  for  gift  or  reward,  is  also  to  be  considered  as  an  offence 
against  religion. 

rX.  Profanation  of  the  Lord's  Day,  vulgarly  (but  im- 
properly) called  Sahbath-hreaJcing,  is  a  ninth  ofifence  against 
God  and  religion  punished  by  the  municipal  law  of  Eng- 
land.^ 

X.  Drunkenness  is  also  punished  by  statute  4  Jac.  I.  c. 
5,  with  the  forfeiture  of  5s.,  or  the  sitting  six  hours  in  the 
stocks,  by  which  time  the  statute  presumes  the  offender  will 
have  regained  his  senses,  and  not  be  liable  to  do  mischief 
to  his  neighbors.^  [64] 

XL  The  last  offence,  more  immediately  against  religion 
and  morality,  and  cognizable  by  the  temporal  courts,  is 
that  of  open  and  notorious  lewdness,  either  by  frequenting 
houses  of  ill-fame,  which  is  an  indictable  offence,  or  by  some 
grossly  scandalous  and  public  indecency,  for  which  the  pun- 
ishment is  by  fine  and  imprisonment.  The  temporal  courts 
take  no  cognizance  of  the  crime  of  adultery  otherwise  than 
as  a  private  injury.^ 

3.  This  subject  has  been  variously  5.  Made  criminal  by  statute  in 
legislated  upon  in  this  country.              some  of  the  states. 

4.  Also  punished  by  statute  in  somfi 
of  the  states. 


Chap.  V.]       Offences  against  Law  of  Nations.  657 

CHAPTER  V. 

OF  OFFENCES  AGAINST  THE  T.AW  OF  NATIONS.* 

The  law  of  nations  is  a  system  of  rules  deducible  by- 
natural  reason  and  established  by  universal  consent  among 
the  civilized  inhabitants  of  the  world,  in  order  to  decide  all 
disputes,  to  regulate  all  ceremonies  and  civilities,  and  to 
insure  the  observance  of  justice  and  good  faith  in  that  inter- 
course which  must  frequently  occur  between  two  or  more 
independent  states  and  the  individuals  belonging  to  each. 
[66]  This  general  law  is  founded  upon  this  principle,  that 
different  nations  ought  in  time  of  peace  to  do  one  another 
all  the  good  they  can,  and  in  time  of  war  as  little  harm  as 
possible,  without  prejudice  to  their  own  real  interests.  And 
as  none  of  these  states  will  allow  a  superiority  in  the  other, 
therefore  neither  can  dictate  or  prescribe  the  rules  of  this 
law  to  the  rest,  but  such  rules  must  necessarily  result  from 
those  principles  of  natural  justice  in  which  all  the  learned 
of  every  nation  agree,  or  they  depend  upon  mutual  compacts 
or  treaties  between  the  respective  communities,  in  the  con- 
struction of  which  there  is  also  no  judge  to  resort  to  but 
the  law  of  nature  and  reason,  being  the  only  one  in  which 
all  the  contracting  parties  are  equally  conversant,  and  to 
which  they  are  equally  subject.  [67] 

The  principal  offences  against  the  law  of  nations,  ani- 
madverted on  as  such  by  the  municipal  laws  of  England,  are 
of  three  kinds:  1,  Violation  of  safe-conducts;  2.  Infringe- 
ment of  the  rights  of  ambassadors;  and  3,  Piracy.  [68] 

1.  As  to  the  first,  violation  of  safe-conducts  or  passports,^ 
expressly  granted  by  the  king  or  his  ambassadors  to  the 
subjects  of  a  foreign  power  in  time  of  mutual  war,  or  com- 
mitting acts  of  hostilities  against  such  as  are  in  amity, 

1.  These  offences  are  all  cognizable  such  by  the  statutes.  The  student 
only    in   the   United    States   courts.  should,    therefore,    in    every   instance, 

2.  As  the  United  Statfs  as  a  na-  consult  the  Revised  Statutes  of  the 
tion  has  no  common  law  all  these  United  States.  See  Clark's  Crim. 
crimes    where    they    exist    are    made  Law    (2d  Ed.),  412. 

42 


658  Offences  against  Law  of  Nations.     [Book  IV. 

league,  or  truce  with  us,  who  are  here  under  a  general  im- 
plied safe-conduct,  these  are  breaches  of  the  public  faith, 
without  the  preservation  of  which  there  can  be  no  inter- 
course or  commerce  between  one  nation  and  another;  and 
such  offences  may,  according  to  the  writers  upon  the  law 
of  nations,  be  a  just  ground  of  a  national  war,  since  it  is 
not  in  the  power  of  the  foreign  prince  to  cause  justice  to  be 
done  to  his  subjects  by  the  very  individual  delinquent,  but 
he  must  require  it  of  the  whole  community.  [69]  And  as 
during  the  continuance  of  any  safe-conduct,  either  express 
or  implied,  the  foreigner  is  under  the  protection  of  the  king 
and  the  law;  and,  more  especially,  as  it  is  one  of  the  articles 
of  Magna  Carta  that  foreign  merchants  should  be  entitled 
to  safe-conduct  and  security  throughout  the  kingdom,  — 
there  is  no  question  but  that  any  violation  of  either  the  per- 
son or  property  of  such  foreigner  may  be  punished  by  in- 
dictment in  the  name  of  the  king,  whose  honor  is  more  par- 
ticularly engaged  in  supporting  his  own  safe-conduct. 

2.  As  to  the  rights  of  ambassadors,  which  are  also  estab- 
lished by  the  law  of  nations,  they  have  formerly  been 
treated  of  at  large.^  [70]  It  may  here  be  sufficient  to  re- 
mark that  the  common  law  of  England  recognises  them  in 
their  full  extent  by  immediately  stopping  all  legal  process 
sued  out  through  the  ignorance  or  rashness  of  individuals 
which  may  intrench  upon  the  immunities  of  a  foreign  min- 
ister or  any  of  his  train.  And  the  more  effectually  to  en- 
force the  law  of  nations  in  this  respect,  when  violated 
through  wantonness  or  insolence,  it  is  declared  by  the  stat- 
ute'? Anne,  c.  12,  that  all  process  whereby  the  person  of 
any  ambassadors,  or  of  his  domestic  or  domestic  servant, 
may  be  arrested,  or  his  goods  distrained  or  seized,  shall  be 
utterly  null  and  void,  and  that  all  persons  prosecuting, 
soliciting,  or  executing  such  process,  being  convicted  by 
confession  or  the  oath  of  one  witness  before  the  Lord  Chan- 
cellor and  the  chief  justices,  or  any  two  of  them,  shall  be 
deemed  violators  of  the  law  of  nations  and  disturbers  of  the 
public  repose,  and  shall  suffer  such  pfienalties  and  corporal 

8.  Book  1,  p.  253. 


Chap.  V.]       Offences  against  Law  of  Nations. 


659 


punishment  as  the  said  judges,  or  any  two  of  them,  shall 
think  fit.3  [71] 

3.  Lastly,  the  crime  of  piracy,  or  robbery  and  depreda- 
tion upon  the  high  seas,  is  an  offence  against  the  universal 
law  of  society,  a  pirate  being,  according  to  Sir  Edward 
Coke,  hostis  humani  generis.*  By  the  ancient  common  law 
piracy,  if  committed  by  a  subject,  was  held  to  be  a  species 
of  high  treason,  being  contrary  to  his  natural  allegiance, 
and  by  an  alien  to  be  felony  only ;  but  now,  since  the  statute 


3.  In  the  year  1654,  during  the  pro- 
tectorate of  Cromwell,  Don  Pataleon 
Sa,  the  brother  of  the  Portuguese  am- 
bassador, who  had  been  joined  with 
him  in  the  same  commission,  was 
tried,  convicted  and  executed,  for  an 
atrocious  murder.  Lord  Hale,  1  P. 
C.  99,  approves  of  the  proceeding;  and 
Mr.  J.  Foster,  p.  188,  though  a  mod- 
ern writer  of  law,  lays  it  down,  that 
"  for  murder  and  other  offences  of 
great  enormity,  which  are  against  the 
light  of  nature  and  the  fundamental 
laws  of  all  society,  ambassadors  are 
certainly  liable  to  answer  in  the  or- 
dinarj'  course  of  justice,  as  other  per- 
sona offending  in  the  like  manner 
are;  "  but  Mr.  Hume  observes  upon 
this  case,  that  "  the  laws  of  nations 
were  here  plainly  violated."  7  vol. 
237.  And  Vattel,  with  irresistible 
ability,  contends  that  the  universal 
inviolability  of  an  ambassador  is  an 
object  of  much  greater  importance  to 
the  world  than  their  punishment  for 
crimes,  however  contrary  to  natural 
justice.  "A  minister,"  says  that  pro- 
found writer,  "  is  often  charged  with 
a  commission  disagreeable  to  the 
prince  to  whom  he  is  sent.  If  this 
prince  has  any  power  over  him,  and 
especially  if  his  authority  be  sover- 
eign, how  is  it  to  be  expected  that  the 
minister  can  execute  his  master's  or- 
ders with  a  proper  freedom  of  mind. 


fidelity  and  firmness?  It  is  necessary 
he  should  have  no  snares  to  fear,  that 
he  cannot  be  diverted  from  his  func- 
tions by  any  chicanery.  He  must 
have  nothing  to  hope,  and  nothing  to 
fear,  from  the  sovereign  to  whom  he 
is  sent.  Therefore,  in  order  to  the 
success  of  his  ministry,  he  must  be 
independent  of  the  sovereign's  author- 
ity, and  of  the  jurisdiction  of  the 
country  both  civil  and  criminal,"  (B. 
4,  c.  7,  §  92),  where  this  subject  is 
discussed  in  a  most  luminous  manner. 
The  Romans,  in  the  infancy  of  their 
state,  acknowledged  the  expediency  of 
the  independence  of  ambassadors;  for 
when  they  had  received  ambassadors 
from  the  Tarquin  princes,  whom  they 
had  dethroned,  and  had  afterwards 
detected  those  ambassadors  in  secretly 
committing  acts  which  might  have 
been  considered  as  treason  against 
their  state,  they  sent  thm  back  un- 
punished; upon  which  Livy  observes, 
et  quanquam  visi  sunt  commississe, 
ut  hostium  loco  essent,  jus  tamen 
gentium  valuit.  Lib.  2,  c.  4.  When 
Bomilcar,  qui  Roman  ^fide  publica 
venerat,  was  prosecuted  as  an  accom- 
plice in  the  assassination  of  Massiva, 
Sallust  declares,  fit  reus  magis  ea» 
aequo  bonoque  quam  ex  jure  gentium. 
Bell.  Jug.,  c.  35. 
4.  An  enemy  of  the  human  race. 


C60  Offences  against  Law  of  Nations.     [Book  IV. 

of  treason  (25  Edw.  III.  c.  2),  it  is  held  to  be  only  felony  in 
a  subject.  The  offence  of  piracy  by  common  law  consists  in 
committing  those  acts  of  robbery  and  depredation  upon  the 
high  seas  which,  if  committed  upon  land,  would  have 
amounted  to  felony  there.  [72]  But  by  statute  some  other 
offences  are  made  piracy  also.'^ 

5.  See  the  United  States  statutes; 
Clark's  Crim.  Law  (2d  Ed.),  411. 


Chap.  VI.]  Of  High  Treason.  661 

CHAPTER  VI. 

OF  HIGH  TREASON". 

[By  Art.  3,  "^  3,  Const.  U.  S.,  treason  against  the  United 
States  can  consist  * '  only  in  levying  war  against  them,  or 
in  adhering  to  their  enemies,  giving  them  aid  and  com- 
fort; "  and  "  no  person  shall  be  convicted  of  treason  unless 
on  the  testimony  of  two  witnesses  to  the  same  overt  act,  or 
on  confession  in  open  court."] 

Every  offence  more  immediately  affecting  the  royal  per- 
son, his  crown  or  dignity,  is  in  some  degree  a  breach  of  the 
duty  of  allegiance,  whether  natural  or  innate,  or  local  and 
acquired  by  residence;  and  these  may  be  distinguished  into 
four  kinds:  1.  Treason.  [74]  2.  Felonies  injurious  to  the 
king's  prerogative.  3.  Praemunire.  4.  Other  misprisions 
and  contempts.  Of  which  crimes  the  first  and  principal  is 
that  of  treason. 

Treason  {proditio)  in  its  very  name  imports  a  betraying, 
treachery,  or  breach  of  faith.  [75]  It  therefore  happens 
only  between  allies,  saith  the  Mirror,  for  treason  is  indeed  a 
general  appellation,  made  use  of  by  the  law  to  denote  not 
only  offences  against  the  king  and  government,  but  also 
that  accumulation  of  guilt  which  arises  whenever  a  superior 
reposes  a  confidence  in  a  subject  or  inferior,  between  whom 
and  himself  there  subsists  a  natural,  a  civil,  or  even  a 
spiritual  relation,  and  the  inferior -so  abuses  that  confidence, 
so  forgets  the  obligations  of  duty,  subjection,  and  allegi- 
ance, as  to  destroy  the  life  of  any  such  superior  or  lord. 

\nd  therefore  for  a  wife  to  kill  her  lord  or  husband,  a  servant  his  lord 
or  master,  and  an  ecclesiastic  his  lord  or  ordinary,  these,  being  breaches 
of  the  lower  allegiance,  of  private  and  domestic  faith,  are  denominated 
petit  treasons.    [Not  law  in  the  United  States.] 

But  when  disloyalty  so  rears  its  crest  as  to  attack  even 
majesty  itself,  it  is  called  by  way  of  eminent  distinction 
high  treason  {alta  proditio). 

By  the  ancient  common  law  there  was  a  great  latitude 


6G2  Or  High  Treason.  [Book  IV. 

left  in  the  breasts  of  the  judges  to  determine  what  was 
treason  or  not  so,  whereby  the  creatures  of  tyrannical 
princes  had  opportunity  to  create  abundance  of  construc- 
tive treasons.  But  to  prevent  the  inconveniences  which 
began  to  arise  from  this  multitude  of  constructive  treasons, 
the  statute  25  Edw.  III.  c.  2,  was  made,  which  defines  what 
offences  only  for  the  future  should  be  held  to  be  treason. 
[76]  This  statute  must  therefore  be  our  text  and  guide  in 
order  to  examine  into  the  several  species  of  high  treason. 
And  we  shall  find  that  it  comprehends  all  kinds  of  high 
treason  under  seven  distinct  branches. 

1.  ' '  When  a  man  doth  compass  or  imagine  the  death  of 
our  lord  the  king,  of  our  lady  his  queen,  or  of  their  eldest 
son  and  heir. ' ' 

Under  this  description  it  is  held  that  a  queen  regnant  is  within  the 
words  of  the  act,  being  invested  with  royal  power,  and  entitled  to  the 
allegiance  of  her  subjects;  but  the  husband  of  such  a  queen  is  not  com- 
prised within  these  words,  and  therefore  no  treason  can  be  committed 
against  him.  [77]  The  king  here  intended  is  the  king  in  possession,  with- 
out any  respect  to  his  title,  for  it  is  held  that  a  king  de  facto  and  not  dc 
jure,  or,  in  other  words,  an  usurper  that  hath  got  possession  of  the 
throne,  is  a  king  within  the  meaning  of  the  statute,  as  there  is  a  tem- 
porary allegiance  due  to  him  for  his  administration  of  the  government, 
and  temporary  protection  of  the  public.  But  the  most  rightful  heir  of 
the  crown,  or  king  de  jure  i  and  not  de  facto,^  who  hath  never  had  plenary 
possession  of  the  throne,  is  not  a  king  within  this  statute  against  whom 
treasons  may  be  committed.  And  a  very  sensible  writer  on  the  crown 
law  [1  Hawk.  P.  C.  36]  carries  the  point  of  possession  so  far  that  he 
holds  that  a  king  out  of  possession  is  so  far  from  having  any  right  to 
our  allegiance,  by  any  other  title  which  he  may  set  up  against  the  king 
in  being,  that  we  are  bound  by  the  duty  of  our  allegiance  to  resist  hiih, — 
a  doctrine  which  he  grounds  upon  the  statute  11  Hen.  VII.  c.  1,  which 
is  declaratory  of  the  common  law,  and  pronounces  all  subjects  excused 
from  any  penalty  or  forfeiture  which  do  assist  and  obey  a  king  dc  facto. 
The  true  distinction  seems  to  be  that  the  statute  of  Henry  VII.  does  by 
no  means  command  any  opposition  to  a  king  de  jure,  but  excuses  the  obedi- 
ence paid  to  a  king  de  facto.  [78] 

Lastly,  a  king  who  has  resigned  his  crown,  such  resignation  being  ad- 
mitted and  ratified  in  parliament,  is  according  to  Sir  Matthew  Hale  no 
longer  the  object  of  treason.  And  the  same  reason  holds  in  case  a  king 
abdicates  the  government,  or,  by  actions  subversive  of  the  constitution, 

1.  Of  right.  2.  In  fact. 


Chap.  VL]  Of  High  Treason.         ^"JXii    ■  663 

virtually  renounces  the  authority  which  he  claims  by  that  very  constitu- 
tion. 

Next,  wliat  is  a  compassing  or  imagining  the  death  of  the  king,  etc. 
These  are  synonymous  terms,  the  word  compass  signifying  the  purpose 
or  design  of  the  mind  or  will,  and  not,  as  in  common  speech,  the  carry- 
ing such  design  to  effect.  And  therefore  an  accidental  stroke,  which  may 
mortally  wound  he  sovereign,  per  infortunium,  without  any  traitorous 
intent,  is  no  treason.  But  as  this  compassing  or  imagining  is  an  act  of 
the  mind,  it  cannot  possibly  fall  under  any  judicial  cognizance,  unless 
it  be  demonstrated  by  some  open  oT  overt  act.  [79]  And  yet  the  tyrant 
Dionysius  is  recorded  to  have  executed  a  subject  barely  for  dreaming 
that  he  had  killed  him,  which  was  held  of  sufficient  proof  that  he  had 
thought  thereof  in  his  waking  hours.  But  in  this  and  the  three  next 
species  of  treason  it  is  necessary  that  there  appear  an  open  or  overt 
act  of  a  more  full  and  explicit  nature  to  convict  the  traitor  upon.  The  stat- 
ute expressly  requires  that  the  accused  "  be  thereof  upon  sufficient  proof 
attainted  of  some  open  act  by  men  of  his  own  condition."  Thus,  to  provide 
weapons  or  ammunition  for  the  purpose  of  killing  the  king  is  held  to 
be  a  palpable  overt  act  of  treason  in  imagining  his  death.  To  conspire 
to  imprison  the  king  by  force,  and  move  towards  it  by  assembling  com- 
pany, is  an  overt  act  of  compassing  the  king's  death.  There  is  no  ques- 
tion, also,  but  that  taking  any  measures  to  render  such  treasonable  pur- 
poses effectual,  as  assembling  and  consulting  on  the  means  to  kill  the 
king,  is  a  sufficient  overt  act  of  high  treason. 

How  far  mere  words  spoken  by  an  individual,  and  not  relative  to  any 
treasonable  act  or  design  then  in  agitation,  shall  amount  to  treason,  has 
been  formerly  matter  of  doubt.  But  now  it  seems  clearly  to  be  agreed 
that  by  the  common  law  and  the  statute  of  Edward  III.  words  spoken 
amount  to  only  a  high  misdemeanor  and  no  treason.  [80]  If  the  words 
be  set  down  in  writing,  it  argues  more  deliberate  intention,  and  it  has 
been  held  that  writing  is  an  overt  act  of  treason,  for  scribere  est  agere. 
But  even  in  this  case  the  bare  words  are  not  the  treason,  but  the  de- 
liberate act  of  writing  them.  And  such  writing,  though  unpublished, 
hrfs  in  some  arbitrary  reigns  convicted  its  author  of  treason.  There  was 
then  no  manner  of  doubt  but  that  the  publication  of  such  a  treasonable 
writing  was  a  sufficient  overt  act  of  treason  at  the  common  law,  though 
of  late  even  that  has  been  questioned.  [81] 

2.  The  second  species  of  treason  is,  **  if  a  man  do  violate 
the  king's  companion,  or  the  king's  eldest  daughter  un- 
married, or  the  wife  of  the  king's  eldest  son  and  heir." 

By  the  king's  companion  is  meant  his  wife,  and  by  violation  is  un- 
derstood carnal  knowledge,  as  well  without  force  as  with  it;  and  this 
is  high  treason  in  both  parties,  if  both  be  consenting.  To  violate  a  queen 
or  princess-dowager  is  held  to  be  no  treason. 


664  Of  High  Treason".  [Book  IV. 

3.  The  third  species  of  treason  is,  "  if  a  man  do  levy  war 
against  our  lord  the  king  in  his  realm.  "^  And  this  may 
be  done  by  taking  arms,  not  only  to  dethrone  the  king,  but 
under  pretence  to  reform  religion  or  the  laws,  or  to  remove 
evil  counselors,  or  other  grievances,  whether  real  or  pre- 
tended. To  resist  the  king's  forces  by  defending  a  castle 
against  them  is  a  levying  of  war;  and  so  is  an  insurrection 
with  an  avowed  design  to  pull  down  all  inclosures,  all 
brothels,  and  the  like;  the  universality  of  the  design  making 
it  a  rebellion  against  the  state,  an  usurpation  of  the  powers 
of  government,  and  an  insolvent  invasion  of  the  king's  au- 
thority. [82]  But  a  tumult  with  a  view  to  pull  down  a  par- 
ticular house  or  lay  open  a  particular  inclosure,  amounts  at 
most  to  a  riot,  this  being  no  general  defiance  of  public 
government.  So  if  two  subjects  quarrel  and  levy  war 
against  each  other  (in  that  spirit  of  private  war  which  pre- 
vailed all  over  Europe  in  the  early  feodal  times),  it  is-  only 
a  great  riot  and  contempt,  and  no  treason.  A  bare  con- 
spiracy to  levy  war  does  not  amount  to  this  species  of 
treason,  but  (if  particularly  pointed  at  the  person  of  the 
king  or  his  government)  it  falls  within  the  first,  of  com- 
passing or  imagining  the  king's  death. 

4.  **  If  a  man  be  adherent  to  the  king's  enemies  in  his 
realm,  giving  to  them  aid  and  comfort  in  the  realm  or  else- 
where," he  is  also  declared  guilty  of  high  treason.  This 
must  likewise  be  proved  by  some  overt  act,  as  by  giving 
them  intelligence,  by  sending  them  provisions,  by  selling 
them  arms,  by  treacherously  surrendering  a  fortress,  or  tlio 
like.  [83]  By  enemies  are  here  understood  the  subjects  of 
foreign  powers  with  whom  we  are  at  open  war.  As  to 
foreign  pirates  or  robbers,  who  may  happen  to  invade  our 
coasts  without  any  open  hostilities  between  their  nation 
and  our  own,  and  without  £my  commission  from  any  prince 
or  state  at  enmity  with  the  crown  of  Great  Britain,  the 

3.  See  quotations  from  the  consti-  constitutions  generally  define  the 
tution  of  the  United  States  at  the  crime  in  the  same  terms  as  the  con- 
beginning  of  this  chapter.  stitution  of  the  United  States.     Id., 

See,   also,   Clark's    Crim.   Law    (2d  406.    In  the  absence  of  such  definition 

Ed.),  406.    Tliere  may  also  be  treason  the  crime  remains  as  at  common  law. 

against  a  state.     Id.,  403.     The  state  Id.;   Whart.  Crim.  Law,  §   1813. 


Chap.  VI.]  Of  High  Tkeason.  665 

giving  tliem  any  assistance  is  also  clearly  treason.  And 
most  indisputably,  the  same  acts  of  adherence  or  aid  which 
(when  applied  to  foreign  enemies)  will  constitute  treason 
under  this  branch  of  the  statute,  will  (when  afforded  to  our 
own  fellow-subjects  in  actual  rebellion  at  home)  amount  to 
high  treason  under  the  description  of  levying  war  against 
the  king.  But  to  relieve  a  rebel  fled  out  of  the  kingdom  is 
no  treason,  for  the  statute  is  taken  strictly,  and  a  rebel  is 
not  an  enemy,  an  enemy  being  always  the  subject  of  some 
foreign  prince,  and  one  who  owes  no  allegiance  to  the  crown 
of  England.  And  if  a  person  be  under  circumstances  of 
actual  force  and  constraint,  through  a  well-grounded  appre- 
hension of  injury  to  his  life  or  person,  this  fear  or  com- 
pulsion will  excuse  his  even  joining  with  either  rebels  or 
enemies  in  the  kingdom,  provided  he  leaves  them  whenever 
he  hath  a  safe  opportunity. 

5.  "If  a  man  counterfeits  the  king's  Great  or  Priyj  Seal,"  this  is  also 
high  treason.  But  if  a  man  take  wax  bearing  the  impression  of  the  Great 
Seal  off  from  one  patent,  and  fixes  it  to  another,  this  is  held  to  be  only  an 
abuse  of  the  seal,  and  not  a  counterfeiting  of  it.* 

6.  The  sixth  species  of  treason  under  this  statute  is,  "if  a  man  coun- 
terfeit the  liing's  money;  and  if  a  man  brings  false  money  into  the  realm 
counterfeit  to  the  money  of  England,  knowing  the  money  to  be  false  to 
merchandise  and  make  payment  withal."  ^  [84] 

7.  The  last  species  of  treason  ascertained  by  the  statute  is,  "  if  a  man 
slay  the  chancellor,  treasurer,  or  the  king's  justices  of  the  one  bench 
or  the  other,  justices  in  eyre  or  justices  of  assise,  and  all  other  justices 
assigned  to  hear  and  determine,  being  in  their  places  doing  their  offices." 
These  high  magistrates,  as  they  represent  the  king's  majesty  during  the 
execution  of  their  offices,  are  therefore  for  the  time  equally  regarded  by 
the  law.  But  this  statute  extends  only  to  the  actual  killing  of  them,  and 
not  wounding,  or  a  bare  attempt  to  kill  them.  It  extends  also  only  to  the 
officers  therein  specified.^ 

The  new  treasons  created  since  the  statute  1  Mar.  c.  1  [which  reduced  ' 
all  treasons  since  the  statute  of  25  Edw.  III.  to  the  standard  of  that  stat- 
ute], and  not  comprehended  under  the  description  of  statute  25  Edw.  III. 
t  are  comprised  under  three  heads.  [87]  1.  Such  as  relate  to  papists.  2. 
Such  as  relate  to  falsifying  the  coin  or  othier  royal  signatures.  3.  Such 
as  are  created  for  the  security  of  the  Protestant  succession  in  the  House 
of  Hanover.     [For  particulars  see  text.] 

4.  See  the  United   States   statutes.  6.  See  the  United   States   statutes. 

5.  See   the  United   States   statutes. 


666  Of  High  Treason.  [Book  IV. 

The  punishment  of  high  treason  in  general  is  very  solemn  and  ter- 
rible. 1.  That  the  offender  be  drawn  to  the  gallows,  and  not  be  carried 
or  walk;  though  usually  (by  connivance,  at  length  ripened  by  humaniiy 
into  law)  a  sledge  or  hurdle  is  allowed,  to  preserve  the  offender  from  the 
extreme  torment  of  being  dragged  on  the  ground  or  pavement.  2.  That 
he  be  hanged  by  the  neck,  and  then  cut  down  alive.  [93]  3.  That  his  en- 
trails be  taken  out  and  burned  while  he  is  yet  alive.  4.  That  his  head 
be  cut  off.  5.  That  his  body  be  divided  into  four  parts.  6.  That  his  head 
and  quarters  be  at  the  king's  disposal.'^ 

The  king  may,  and  often  doth,  discharge  all  the  punishment  except 
beheading,  especially  where  any  of  noble  blood  are  attainted.  For  be- 
heading, being  part  of  the  judgment,  that  may  be  executed,  though  all 
the  rest  be  omitted  by  the  king's  command.  But  where  beheading  is  no 
part  of  the  judgment,  as  in  murder  or  other  felonies,  it  hath  been  said 
that  the  king  cannot  change  the  judgment,  although  at  the  reques-t  of 
the  party,  from  one  species  of  death  to  another. 

In  the  case  of  coining,  which  is  a  treason  of  a  different  complexion 
from  the  rest,  the  punishment  is  milder  for  male  offenders,  being  only 
to  be  drawn  and  hanged  by  the  neck  till  dead.  But  in  treasons  of  every 
kind  the  punishment  of  women  is  the  same,  and  different  from  that  of 
men.  Their  sentence  is  to  be  drawn  to  the  gallows,  and  there  to  be 
burned  alive. 

7.  The  punishment  of  treason  both  death.  The  barbarities  described  in 
in  England  and  the  United  States  is      the  text  are  no  longer  inflicted. 


Chap.  VII.]  Of  Felonies.  667 

CHAPTER  VII.      ■ 

OF    FELONIES  INJURIOUS  TO   THE   KINg's   PREROGATIVE. 

Felony  in  the  general  acceptation  of  our  English  law, 
comprises  every  species  of  crime  which  occasioned  at  com- 
mon law  the  forfeiture  of.  lands  and  goods.  [94]  This  most 
frequently  happens  in  those  crimes  for  which  a  capital  pun- 
ishment either  is  or  was  liable  to  be  inflicted;  for  those 
felonies  which  are  called  clergyable,  or  to  which  the  benefit 
of  clergy  extends,  were  anciently  punished  with  death  in 
all  lay  or  unlearned  offenders,  though  now  by  the  statute 
law  that  punishment  is  for  the  first  offence  universally 
remitted.  All  treasons,  strictly  speaking,  are  felonies, 
though  all  felonies  are  not  treason.  [95]  And  to  this  also 
we  may  add  that  not  only  all  offences  now  capital  are  in 
some  degree  or  other  felony,  but  that  this  is  likewise  the 
case  with  some  other  offences  which  are  not  punished  with 
death,  as  suicide,  where  the  party  is  already  dead,  homicide 
by  chance-medley  or  in  self-defence,  and  petit  larceny  or 
pilfering,  —  all  which  are  (strictly  speaking)  felonies,  as 
they  subject  the  committers  of  them  to  forfeitures.  So 
that  upon  the  whole  the  only  adequate  definition  of  felony 
seems  to  be  that  which  is  before  laid  down,  viz.,  an  offence 
which  occasions  a  total  forfeiture  of  either  lands  or  goods, 
or  both,  at  the  common  law.^ 

Capital  punishment  does  by  no  means  enter  into  the  true 
idea  and  definition  of  felony.  [97]  Felony  may  be  without 
inflicting  capital  punishment,  as  in  the  cases  instanced  of 
self-murder,  excusable  homicide,  and  petit  larceny ;  and  it  is 
possible  that  capital  punishments  may  be  inflicted  and  yet 
the  offence  be  no  felony,  as  in  case  of  heresy  by  the  common 

1.  Felony  in  this  country  is  usually  chusetts,  Michigan,  New  York,  Ten- 
defined  by  statute  to  mean  all  of-  nessee,  Virginia,  Wisconsin  and  prob- 
fences  which  are  punishable  by  death  ably  in  others.  See  Washburn's  Grim, 
or  imprisonment  in  the  state's  prison.  Law  (3d  Ed.),  11,  note;  Clark's  Crim. 
It  is  so  in  California,  Colorado,  Illi-  Law  (2d  Ed.),  40. 
nois,  Indiana,  Iowa,  Kentucky,  Massa- 


068  Of  Felonies.  [Book  IV. 

law,  which,  though  capital,  never  worked  any  forfeiture  of 
lands  or  goods,  —  an  inseparable  incident  to  felony.  And 
of  the  same  nature  was  the  punishment  of  standing  mute 
without  pleading  to  an  indictment,  which  at  the  common 
law  was  capital,  but  without  any  forfeiture,  and.  therefore 
such  standing  mute  was  no  felony.  In  short,  the  true  cri- 
terion of  felony  is  forfeiture ;  for,  as  Sir  Edward  Coke  justly 
observes,  in  all  felonies  which  are  punishable  Avith  death 
the  offender  loses  all  his  lands  in  fee-simple  and  also  his 
goods  and  chattels;  in  such  as  are  not  so  punishable,  his 
goods  and  chattels  only.  The  idea  of  felony  is  indeed  so 
generally  connected  with  that  of  capital  punishment,  that 
we  find  it  hard  to  separate  them;  and  to  this  usage  the  in- 
terpretations of  the  law  do  now  conform.  [98]  And  there- 
fore if  a  statute  makes  any  new  offence  felony,  the  law 
implies  that  it  shall  be  punished  with  death,  viz.,  by  hang- 
ing as  well  as  with  forfeiture;  unless  the  offender  prays  the 
benefit  of  clergy,^  which  all  felons  are  entitled  once  to  have, 
provided  the  same  is  not  expressly  taken  away  by  statute. 

The  felonies  i^hich  are  more  immediately  injurious  to  the  king's  pre- 
rogative are:  1.  Offences  relating  to  the  coin  not  amounting  to  treason. 
2.  Offences  against  the  king's  council.  3.  The  offence  of  serving  a 
foreign  prince.  4.  The  offence  of  embezzling  or  destroying  the  king's 
armor  or  stores  of  war.  To  whteh  may  be  added  a  fifth,  5.  Desertion 
from  the  king's  armies  in  time  of  war.  [The  rest  of  this  chapter  is 
purely  statutory,  and  inapplicable  to  this  country.] 

2.  Now  abolished. 


Chap.  VIIL]  Of  Pkaemunire.  669 


CHAPTER  VIIL 

OF  PEAEMUNIRE. 

A  third  species  of  offence  more  immediately  affecting  the  king  and  his 
government,  thouch  not  subject  to  capital  punishment,  is  that  of  praemu- 
nire, so  called  from  tho  words  of  the  writ  preparatory  to  the  prosecution 
thereof:  "praemunire  [for  praemoneri]  facias  A  B,"  cause  A  B  to  be  fore- 
warned that  he  appear  before  us  to  answer  the  contempt  wherewith  he 
stands  charged, — which  contempt  is  particularly  recited  in  the  preamble 
to  the  writ.  It  took  its  original  from  the  exorbitant  power  claimed  and 
exercised  in  England  by  the  pope.  [103] 

The  original  nieAuing  of  the  offence  which  we  call  praemunire  is  this, 
viz.  introducing  a  foreign  power  into  this  land  and  creating  imperium  in 
imperio,  by  paying  that  obedience  to  papal  process  which  constitutionally 
belonged  to  the  king  alone,  long  before  the  Reformation  in  the  reign  of 
Henry  VIII.  [115]  The  penalties  of  praemunire  being  pains  of  no  incon- 
siderable consequence,  it  has  been  thought  fit  to  apply  the  same  to  other 
heinous  offences,  some  of  which  bear  more  and  some  less  relation  to  this 
original  offence,  and  some  no  relation  at  all.  [116]  [There  being  no 
such  offence  in  this  country  as  praemunire,  the  rest  of  this  chapter  is 
omitted.] 


C70  MiSPBISIONS   AND   CoNTEMrXS.  [BoOK  IV. 


CHAPTER  IX. 

OF  MISPRISIONS  AND  CONTEMPTS  AFFECTING  THE  KING  AND 
GOVERNMENT. 

Misprisions  (a  term  derived  from  the  old  French  mcspris, 
a  neglect  or  contempt)  are,  in  the  acceptation  of  our  law, 
generally  understood  to  be  all  such  high  offences  as  are 
under  the  degree  of  capital,  but  nearly  bordering  thereon; 
and  it  is  said  that  a  misprision  is  contained  in  every  treason 
and  felony  whatsoever,  and  that  if  the  king  so  please  the 
offender  may  be  proceeded  against  for  the  misprison  only. 
[119] 

Misprisions  are  generally  divided  into  two  sorts:  nega- 
tivjB,  which  consist  in  the  concealment  of  something  which 
ought  to  be  revealed,  and  positive,  which  consist  in  the 
commission  of  something  which  ought  not  to  be  done. 

I.  Of  the  first,  or  negative  kind,  is  what  is  called  mispri- 
son of  treason,^  consisting  in  the  bare  knowledge  and  con- 
cealment of  treason  without  any  degree  of  assent  thereto; 
for  any  assent  makes  the  party  a  principal  traitor,  as  indeed 
the  concealment,  which  was  construed  aiding  and  abetting, 
did  at  the  common  law.  [120]  But  it  is  now  enacted  by  the 
statute  1  &  2  Ph.  &  M.  c.  10,  that  a  bare  concealment  of 
treason  shall  be  only  held  a  misprision.  This  concealment 
becomes  criminal  if  the  party  apprized  of  the  treason  does 
not,  as  soon  as  conveniently  may  be,  reveal  it  to  some  judge 
of  assise  or  justice  of  the  peace. 

Misprision  of  felony  is  also  the  concealment  of  a  felony 
which  a  man  knows,  but  never  assented  to;  for  if  he  as- 
sented, this  makes  him  either  principal  or  accessary.^  [121] 

There  is  also  another  species  of  negative  misprisions,  namely,  the  con- 
cealing of  treasure-trOTC,  which  belongs  to  the  king  or  his  grantees  by 
prerogative  royal,  the  concealment  of  which  was  formerly  punishable 
by  death,  but  now  only  by  fine  and  imprisonment. 

1.  An     offence     also     against     the  S.  This  is  a  misdemeanor.     Clark's 

United    States.      Rev.    Stat.   U.   S..    §       Crim.  Law    (2d  Ed.),  383. 
-5333;    Clark's   Crim.   Law    (2d   Ed.),  *-"^      ' 

406. 


Cjiap.  IX.]  Misprisions  and  Contempts.  671 

II.  Misprisions  which  are  merely  positive  are  generally 
denominated  contempts  or  high  misdemeanors,  of  which 

1.  The  first  and  principal  is  the  mal-administration  of 
such  high  officers  as  are  in  public  trust  and  employment. 
This  is  usually  punished  by  the  method  of  parliamentary  im- 
peachment.^ Hitherto  also  may  be  referred  the  offence  of 
embezzling  the  public  money."*  [122]  With  us  it  is  not  a 
capital  crime,  but  subjects  the  committer  of  it  to  a  dis- 
cretionary fine  and  imprisonment.  Other  misprisions  are, 
in  general,  such  contempts  of  the  executive  magistrate  as 
demonstrate  themselves  by  some  arrogant  and  undutiful 
behavior  toward  the  king  and  government.     There  are 

2.  Contempts  against  the  king's  prerogative.  As  by  re- 
fusing to  assist  him  for  the  good  of  the  public,  either  in  his 
councils  by  advice  if  called  upon,  or  in  his  wars  by  personal 
service  for  defence  of  the  realm  against  a  rebellion  or  in- 
vasion. Under  w^hich  class  may  be  ranked  the  neglecting 
to  join  the  posse  comitatus,  or  power  of  the  county,  being 
thereunto  required  by  the  sheriff  or  justices  according  to 
the  statute  2  Hen.  V.  c.  8,  w^hich  is  a  duty  incumbent  upon 
all  that  are  fifteen  years  of  age,  under  the  degree  of  nobility, 
and  able  to  travel.  Contempts  against  the  prerogative  may 
also  be  by  preferring  the  interes.ts  of  a  foreign  potentate  to 
those  of  their  own,  or  doing  or  receiving  anything  that  may 
create  an  undue  influence  in  favor  of  such  extrinsic  power, 
—  as  by  taking  a  pension  from  any  foreign  prince  without 
the  consent  of  the  king;  or  by  disobeying  the  king's  lawful 
commands,  whether  by  writs  issuing  out  of  his  courts  of 
justice,  or  by  a  summons  to  attend  his  privy  council,  or  by 
letters  from  the  king  to  a  subject  commanding  him  to  return 
from  beyond  seas  (for  disobedience  to  which  his  lands  shall 
be  seized  till  he  does  return,  and  himself  afterwards  pun- 
ished), or  by  his  writ  of  ne  exeat  regnum;'  or  proclamation 
commanding  the  subject  to  stay  at  home,  —  disobedience  to 
any  of  these  commands  is  a  high  misprision  and  contempt. 

3.  See  U.   S.   Const.,  art.  2,  sec.  4.  5.  That    he    depart    not    from    the 

4.  See   the   state   and   federal   stat-      kingdom. 
iites ;   also  the  several  state  constitu- 
tions. 


072  MiSPElSlONS    AND    CONTEMPTS.  [BoOK  IV. 

And  so,  lastly,  is  disobedience  to  any  act  of  parliament 
where  no  particular  penalty  is  assigned;  for  then  it  is  pun- 
ishable, like  the  rest  of  these  contempts,^  by  fine  and  im- 
prisonment at  the  discretion  of  the  king's  courts  of  justice. 
[123] 

3.  Coutenipts  and  misprisions  against  the  king's  person  and  govern* 
nient  may  be  by  speaking  or  writing  against  them,  cursing  or  wishing 
him  ill,  giving  out  scandalous  stories  concerning  him,  or  doing  any- 
thing that  may  tend  to  lessen  him  in  the  esteem  of  his  subjects,  may 
weaken  his  government,  or  may  raise  jealousies  between  him  and  his 
people. 

4.  Contempts  against  the  king's  title,  not  amounting  to  treason  or 
praemunire,  are  the  denial  of  his  right  to  the  crown  in  common  and  unad- 
vised discourse;  for  if  it  be  by  advisedly  speaking,  it  amounts  to  a 
pii:aemunire. 

5.  Contempts  against  the  king's  palaces  or  courts  of  jus- 
tice have  been  always  looked  upon  as  high  misprisions. 

And  by  the  ancient  law,  before  the  Conquest,  fighting  in  the  king's 
palace  or  before  the  king's  judges  was  punished  with  death.  [124]  And 
at  present  with  us,  by  the  statute  33  Hen.  VIII.  c.  12,  nialicions  striking 
in  the  king's  palace,  wherein  his  royal  person  resides,  whereby  blood 
is  drawn,  is  punishable  by  perpetual  imprisonment  and  fine  at  the  king's 
pleasure,  and  also  with  loss  of  the  offender's  right  hand,  the  solemn 
execution  of  which  sentence  is  prescribed  in  the  statute  at  length.  [125] 

But  striking  in  the  king's  superior  courts  of  justice,  in 

Westminster  Hall  or  at  the  assises,  is  made  still  more  penal 
than  even  in  the  king's  palace.  A  stroke  or  blow  in  such 
a  court  of  justice,  whether  blood  be  drawn  or  not,  or  even 
assaulting  a  judge  sitting  in  the  court,  by  draAving  a  weapoji 
without  any  blow  struck,  is  punishable  with  the  loss  of 
the  right  hand,  imprisonment  for  life,  and  forfeiture  of 
goods  and  chattels,  and  of  the  profits  of  his  lands  during 
life.  A  rescue,  also,  of  a  prisoner  from  any  of  the  said 
courts  without  striking  a  blow  is  punished  with  perpetual 
imprisonment,  and  forfeiture  of  goods  and  of  the  profits 
of  lands  during  life.    For  the  like  reason,  an  aJBfray  or  riot 

6.  Which    are    misdemeanors    and  not  felonies.     See  the  statutes. 


CiTAr.  IX.]  Misprisions  and  Contempts.  673 

near  the  said  courts,  but  out  of  their  actual  view,  is  pun- 
ished only  with  fine  and  imprisonment. 

Not  only  such  as  are  guilty  of  an  actual  violence,  but  of 
threatening  or  reproachful  words  to  any  judge  sitting  in 
the  courts,  are  guiltj^  of  a  high  misprision,  and  have  been 
punished  with  large  fines,  imprisonment,  and  corporal  pun- 
ishment. [126]  And  even  in  the  inferior  court's  of  the  king 
an  affray  or  contemptuous  behavior  is  punishable  with  a 
fine  by  the  judges  there  sitting. 

Likewise,  all  such  as  are  guilty  of  any  injurious  treat- 
ment to  those  who  are  immediately  under  the  protection  of 
a  court  of  justice  are  punishable  by  fine  and  imprisonment: 
as  if  a  man  assaults  or  threatens  his  adversary  for  suing 
him,  a  counselor  or  attorney  for  being  employed  against 
him,  a  juror  for  his  verdict,  or  a  gaoler  or  other  ministerial 
officer  for  keeping  him  in  custody  and  properly  executing 
his  duty. 

Lastly,  to  endeavor  to  dissuade  a  witness  from  giving 
evidence,  to  disclose  an  examination  before  the  privy  coun- 
cil, or  to  advise  a  prisoner  to  stand  mute  (all  of  which  are 
impediments  of  justice),  are  high  misprisions  and  con- 
tempts of  the  king's  courts,  and  punishable  by  fine  and 
imprisonment.  And  anciently  it  was  held  that  if  one  of  the 
grand  jury  disclosed  to  any  person  indicted  the  evidence 
that  appeared  against  him  he  was  thereby  made  accessory 
to  the  offence,  if  felony,  and  in  treason  a  principal.  And  at 
this  day  it  is  agreed  that  he  is  guilt}'  of  a  high  misprision, 
and  liable  to  be  fined  and  imprisoned." 

7,  "The    power    of    punishing    for  Ed.),    191-193.      Cases    of    contempt 

contempt    is    incident    to    all    courts  were  never  triable  by  jury.     Cooley'a 

having  jurisdiction  to  try  causes,  as  Const.  Lim.  (7th  Ed.),  453,  note.  See, 

well  as  to  deliberative  bodies  acting  also,    People    v.    Wilson,    64    111.    195 

in  matters  of  government,  like  houses  ( libel  upon  Supreme  Court  punished 

of    parliament    and    houses    of    Con-  as  a  contempt)  ;  Storey  v.  People,  79 

gress."     Washburn's   Crim.   Law    (3d  i>L  45. 

Ed.),  •247;  Cooler's  Const.  Lim.  (7th  ' 

43 


674  Offences  against  Public  Justice.      [Book  IV. 

CHAPTER  X. 

OF  OFFENCES  AGAINST  PUBLIC   JUSTICE. 

The  crimes  and  misdemeanors  that  more  especially  affect 
the  commonwealth  may  be  divided  into  five  species,  viz., 
offences  against  public  justice,  against  the  public  peace^ 
against  public  trade,  against  the  public  health,  and  against 
the  public  police  or  economy.  [128] 

First,  of  offences  against  public  justice,  some  of  which 
are  felonious,  whose  punishment  may  extend  to  death; 
others  only  misdemeanors.  I  shall  begin  with  those  that 
are  most  penal,  and  descend  gradually  to  such  as  are  of  less 
malignity. 

1.  Embezzling  or  vacating  records,  or  falsifying  certain 
other  proceedings  in  a  court  of  judicature,  is  [by  statute] 
a  felonious  offence  against  public  justice.* 

2.  To  prevent  abuses  by  the  extensive  power  which  the  law  is  obliged 
to  repose  in  gaolers,  it  is  nacted  by  statute  14  Edw.  III.  c.  10,  that  if  any 
gaoler  by  too  great  duress  of  imprisonment  makes  any  prisoner  that  he 
hath  in  ward  become  an  approver  or  an  appellor  against  his  will, — that 
is,  as  we  shall  see  hereafter,  to  accuse  and  turn  evidence  against  some 
other  person, — it  is  felony  in  the  gaoler.  [129]     [Repealed.] 

3.  A  third  offence  against  public  justice  is  obstructing  the 
execution  of  lawful  process.^  This  is  at  all  times  an  offence 
of  a  very  high  and  presumptions  nature,  but  more  particu- 
larly so  when  it  is  an  obstruction  of  an  arrest  upon  criminal 
process.  And  it  hath  been  holden  that  the  party  opposing 
such  arrest  becomes  thereby  particeps  criminis, —  that  is,  an 
accessory  in  felony,  and  a  principal  in  high  treason. 

4.  An  escape  of  a  person  arrested  upon  criminal  process 
by  eluding  the  vigilance  of  his  keepers  before  he  is  put  in 
hold,  is  also  an  offence  against  public  justice,  and  the  party 
himself  is  punishable  by  fine  or  imprisonment.  [130]  But 
the  officer  permitting  such  escape,  either  by  negligence  or 

1.  Consult  the  local  statutes.  tory  regulation  in  the  several  states. 

2.  This  is  made  a  matter  of  statu-      Consult  the  statutes. 


Chap.  X.]       Offences  against  Public  Justice.  675 

connivance,  is  much  more  culpable  than  the  prisoner.  Offi- 
cers, therefore,  M^ho  after  arrest  negligently  permit  a  felon 
to  escape,  are  also  punishable  by  fine.  But  voluntary  es- 
capes, by  consent  and  connivance  of  the  officer,  are  a  much 
more  serious  offence;  for  it  is  generally  agreed  that  such 
escapes  amount  to  the  same  kind  of  offence,  and  are  punish- 
able in  the  same  degree  as  the  offence  of  which  the  prisoner 
is  guilty  and  for  which  he  is  in  custody,  whether  treason, 
felony,  or  trespass  —  and  this  whether  he  were  actually 
committed  to  gaol,  or  only  under  a  bare  arrest.^  But  the 
officer  cannot  be  thus  punished  till  the  original  delinquent 
hath  actually  received  judgment  or  been  attainted  upon 
verdict,  confession,  or  outlawry  of  the  crime  for  which  he 
was  so  committed  or  arrested.  But  before  the  conviction 
of  the  principal  party  the  officer  thus  neglecting  his  duty 
may  be  fined  and  imprisoned  for  a  misdemeanor. 

5.  Breach  of  prison  by  the  offender  himself  when  com- 
mitted for  any  cause  was  felony  at  the  common  law,  or  even 
conspiring  to  break  it.^  But  this  severity  is  mitigated  by 
the  statute  de  frangentihus  prisonam,  1  Edw.  II.,  which  en- 
acts that  no  person  shall  have  judgment  of  life  or  member 
for  breaking  prison  unless  committed  for  some  capital  of- 
fence; so  that  to  break  prison  and  escape  when  lawfully 
committed  for  any  treason  or  felony  remains  still  felony 
as  at  the  common  law;  and  to  break  prison  (whether  it  be 
the  county  gaol,  the  stocks,  or  other  usual  place  of  security) 
when  lawfully  confined  upon  any  other  inferior  charge,  is 
still  punishable  as  a  high  misdemeanor  by  fine  and  impris- 
onment. [131] 

6.  Rescue  is  the  forcibly  and  knowingly  freeing  another 
from  an  arrest  or  imprisonment;  and  it  is  generally  the 
same  offence  in  the  stranger  so  rescuing  as  it  would  have 
been  in  a  gaoler  to  have  voluntarily  permitted  an  escape. 
A  rescue,  therefore,  of  one  apprehended  for  felony  is  felony; 
for  treason,  treason;  and  for  a  misdemeanor,  a  misdemeanor 
also.^  But  here  likewise,  as  upon  voluntary  escapes,  the 
principal  must  first  be  attainted  or  receive  judgment  before 


3.  Clark's 

Crim. 

Law 

(2d    Ed.), 

4.  Id., 

382. 

381. 

5.  Id., 

383. 

676  Offences  against  Public  Justice.      [Book  IV. 

the  rescuer  can  be  punished;  and  for  the  same  reason,  be- 
cause perhaps  in  fact  it  may  turn  out  that  there  has  been 
no  offence  committed. 

7.  Another  capital  offence  against  public  justice  is  the  returniug  from 
transportation,  or  being  sieen  at  large  in  Great  Britain  before  the  expira- 
tion of  the  terra  for  which  the  offender  was  ordered  to  be  transported, 
or  had  agreed  to  transport  himself.  [132] 

8.  An  eighth  is  that  of  taking  a  reward  under  pretence  of  helping  the 
owner  to  his  stolen  goods:  to  prevent  which  audacious  practice,  it  was 
enacted  by  statute  4  Geo.  I.  c.  II,  that  whoever  shall  take  a  reward  under 
the  pretence  of  helping  any  one  to  stolen  goods  shall  suffer  as  the  felon 
who  stole  them,  unless  he  causes  such  principal  felon  to  be  apprehended 
and  brought  to  trial,  and  also  gives  evidence  against  him. 

9.  Receiving  of  stolen  goods,  knowing  them  to  be  stolen, 

is  also  a  high  misdemeanor  and  affront  to  public  justice.'' 
This  offence,  which  is  only  a  misdemeanor  at  common  law, 
by  the  statute  3  &  4  W.  &  M.  c.  9,  and  5  Anne,  c.  31,  makes 
the  offender  accessary  to  the  theft  and  felony.  But  be- 
cause the  accessary  cannot  in  general  be  tried  unless  with 
the  principal  or  after  the  principal  is  convicted,  the  re- 
ceivers by  that  means  frequently  eluded  justice.  [133]  To 
remedy  which,  it  is  enacted  by  statute  1  Anne,  c.  9,  and  5 
Anne,  c.  31,  that  such  receivers  may  still  be  prosecuted  for 
a  misdemeanor,  and  punished  by  fin«  and  imprisonment, 
though  the  principal  felon  be  not  before  taken  so  as  to  be 
prosecuted  and  convicted.  So  that  now  the  prosecutor  has 
two  methods  in  his  choice:  either  to  punish  the  receivers 
for  the  misdemeanor  immediately,  before  the  thief  is  taken, 
or  to  wait  till  the  felon  is  convicted,  and  then  punish  them 
as  accessaries  to  the  felony.  But  it  is  provided  by  the 
same  statutes  that  he  shall  only  make  use  of  one,  and  not 
both  of  these  methods  of  punishment. 

10.  Of  a  nature  somewhat  similar  to  the  two  last  is  the 

6.  This  is  now  made  a  substantive  consent  of  the  person  from  whom  re- 
crime  by  statute  in  probably  all  the  ceived;  the  receiver  must  know  that 
states.  To  constitute  the  offence  the  il  was  stolen  and  must  have  a  feloni- 
property  must  have  been  stolen  when  ens  intejit.  Clark's  Crim.  Law  (2d 
received;  it  must  have  come  into  the  Ed.),  327.  See  Wash.  Crim.  Law  (3d 
possession   of   the    receiver   with    the  Ed.),  66  and  cases  cited. 


CiiAr.  X.]       Offejjces  against  Public  Justice.  677 

offence  of  theft  bote,  which  is  where  the  party  robbed  not 
only  knows  the  felon,  but  also  takes  his  goods  again,  or 
other  amends  upon  agreement  not  to  prosecute.  This  is 
frequently  called  compounding  of  felony,^  and  formerly  was 
held  to  make  a  man  an  accessary;  but  it  is  now  punished 
only  with  fine  and  imprisonment. 

11.  Common  barratry  is  the  offence  of  frequently  exciting 
and  stirring  up  suits  and  quarrels  between  his  Majesty's 
subjects,  either  at  law  or  otherwise.®  [134]  The  punish- 
ment for  this  offence,  in  si  common  person,  is  by  fine  and 
imprisonment;  but  if  the  offender  (as  is  too  frequently  the 
case)  belongs  to  the  jorofession  of  the  law,  a  barrator,  who 
is  thus  able  as  well  as  willing  to  do  mischief,  ought  also  to 
be  disabled  from  practising  for  the  future.  Hereunto  may 
also  be  referred  another  offence  of  equal  malignity  and  au- 
daciousness,, that  of  suing  another  in  the  name  of  a  ficti- 
tious plaintiff,  either  one  not  in  being  at  all,  or  one  who  is 
ignorant  of  the  suit.  This  offence,  if  committed  in  any  of 
the  king's  superior  courts,  is  left,  as  a  high  contempt,  to 
be  punished  at  their  discretion.  But  in  courts  of  a  lower 
degree,  where  the  crime  is  equally  pernicious  but  the  au- 
thority of  the  judges  not  equally  extensive,  it  is  directed 
by  statute  8  Eliz.  c.  2,  to  be  punished  by  six  months'  im- 
prisonment and  treble  damages  to  the  party  injured. 

12.  Maintenance  is  an  offence  that  bears  a  near  relation  to 
the  former,  being  an  officious  intermeddling  in  a  suit  that  no 
way  belongs  to  one,  by  maintaining  or  assisting  either 
party,  with  money  or  otherwise,  to  prosecute  or  defend  it.^ 
A  man  may,  however,  maintain  the  suit  of  his  near  kinsman, 
servant,  or  poor  neighbor,  out  of  charity  and  compassion, 
with  impunity.  [135]  Otherwise,  the  punishment  by  com- 
mon law  is  fine  and  imprisonment,  and  by  the  statute  32 
Hen.  Vin.  c.  9,  a  forfeiture  of  10/. 

13.  Champerty,^  campl-partitio,  is  a  species  of  mainte- 

7.  Com.  V.  Pease,  16  Mass.  91;  9.  1  Hawk.  PI.  Cr.,  ch.  83,  see.  1; 
Clark's  Crim.  LaVP  (2d  Ed.),  383.  It  Rev.  Stat.  111.  (1874),  355,  §  27; 
is  a  misdemeanor  at  common  law.  Id.,      Moore's  Crim.  Law,  §  238. 

383.  1.  Clark's   Crim.   Law,   376;    Wash. 

8.  Clark's  Crim.  Law,  376;  Com.  v.  Crim.  Law,  29.  Champerty  is  a  mis- 
Davis,  11  Pick.  433.  demeanor   at   common   law.     Lathrop 


678  Offences  against  Public  .Justice.      [Book  IV. 

nance,  and  punished  in  the  same  manner,  being  a  bargain 
with  a  plaintiff  or  defendant  campum  partire,  to  divide  the 
land  or  other  matter  sued  for  between  them  if  they  prevail 
at  law,  whereupon  the  champertor  is  to  carry  on  the  party's 
suit  at  his  own  expense.  In  our  sense  of  the  word  it  signi- 
fies the  purchasing  of  a  suit  or  right  of  suing, —  a  practice 
so  much  abhorred  by  our  law  that  it  is  one  main  reason  why 
a  chose  in  action,  or  thing  of  which  one  hath  the  right  but 
not  the  possession,  is  not  assignable  at  common  law,  be- 
cause no  man  should  purchase  aay  pretence  to  sue  in  an- 
other's right.  Hitherto  also  must  be  referred  the  provision 
of  the  statute  32  Hen.  VIII.  c.  9,  that  no  one  shall  sell  or 
purchase  any  pretended  right  or  title  to  land,  unless  the 
vendor  hath  received  the  profits  thereof  for  one  whole  year 
before  such  grant,  or  hath  been  in  actual  possession  of  the 
land,  or  of  the  reversion  or  remainder.^  [136]  These  of- 
fences relate  chiefly  to  the  commencement  of  civil  suits;  but 

14.  The  compounding  of  informations  upon  penal  statutes 
is  an  offence  of  an  equivalent  nature  in  criminal  causes,  and 
is  besides  an  additional  misdemeanor  against  public  justice 
by  contributing  to  make  the  laws  odious  to  the  people.  At 
once,  therefore,  to  discourage  malicious  informers  and  to 
provide  that  offences  when  once  discovered  shall  be  duly 
prosecuted,  it  is  enacted  by  statute  18  Eliz.  c.  5,  that  if  any 
person,  informing  under  pretence  of  any  penal  law,  makes 
any  composition  without  leave  of  the  court,  or  takes  any 
money  or  promise  from  the  defendant  to  excuse  him  (which 
demonstrates  his  intent  in  commencing  the  prosecution  to 
be  merely  to  serve  his  own  ends,  and  not  for  the  public 
good),  he  shall  forfeit  lOZ.,  shall  stand  two  hours  on  the 
pillory,  and  shall  be  forever  disabled  to  sue  on  any  popular 
or  penal  statute.^ 

15.  A  conspiracy  also  to  indict  an  innocent  man  of  fel- 

V,  Amherst  Bank,  9  Met.  490;  Thomp-  2.  Prohibited    by    statute    in    some 

son  V.  Reynolds,  73  111.  1.     In  Iowa,  states.     Consult  the  statutes. 

Michigan,  Ohio,  New  Jersey,  Massa-  3.  See  the  local  statutes, 

chusetts   and  Vermont   it   is  not    (as  4.  Dr.  McLain  in  his  work  on  Crim- 

it    seems)     a    criminal    offence.      See  inal  Law,  §  953,  well  defines  conspir- 

Wash.   Crim.  Law    (3d   Ed.),   29,   30,  acy    as    "a    combination    of    two    or 

and  notes.    Consult  the  local  statutes.  more  persons  by  concerted  action  to 


Chap.  X.]       Offences  against  Public  Justice.  679 

ony  falsely  and  maliciously,  who  is.accordingly  indicted  and 
acquitted,  is  a  farther  abuse  and  perversion  of  public  jus- 
tice, for  which  the  party  injured  may  either  have  a  civil 
action  by  writ  of  conspiracy,  or  the  conspirators,  for  there 
must  be  at  least  two  to  form  a  conspiracy,  may  be  indicted 
at  the  suit  of  the  king,  and  were  by  the  ancient  common  law 
to  receive  what  is  called  the  villenous  judgment,  viz.,  to  lose 
their  lil\eram  legem ^  whereby  they  are  discredited  and'  dis- 
abled as  jurors  or  witnesses;  to  forfeit  their  goods  and 
chattels  and  lands  for  life;  to  have  those  lands  wasted, 
their  houses  razed,  their  trees  rooted  up,  and  their  own 
bodies  committed  to  prison.  But  it  now  is  the  better 
opinion  that  the  villenous  judgment  is  by  long  disuse  be- 
come obsolete,  it  not  having  been  pronounced  for  some  ages, 
hut  instead  thereof  the  delinquents  are  usually  sentenced 
to  imprisonment,  fine,  and  pillory.  [137]  To  this  head  may 
be  referred  the  offence  of  sending  letters  threatening  to 
accuse  any  person  of  a  crime  punishable  with  death,  trans- 
portation, pillory,  or  other  infamous  punishment,  with  a 
view  to  extort  from  him  any  money  or  other  valuable  chat- 
tels. This  is  punishable  by  statute  30  Geo.  II.  c.  24,^  at  the 
discretion  of  the  court,  with  fine,  imprisonment,  pillory, 
whipping,  or  transportation  for  seven  years. 

16.  The  next  offence  against  public  justice  is  the  crime 
of  wilful  and  corrupt  perjury,  which  is  defined  by  Sir  Ed- 
ward Coke  to  be  a  crime  committed  when  a  lawful  oath 
is  administered,  in  some  judicial  proceeding,  to  a  person 
who  swears  wilfully,  absolutely,  and  falsely,  in  a  matter 
material  to  the  issue  or  point  in  question.*^     The  law  takes 

accomplish    a    criminal    or    unlawful  committed  by  husband  and  wife  alone, 

purpose,  or  some   purpose  not  in   it-  Clark's  Crim.' Law  (2d  Ed.),  142,  143 

self  criminal,  by  criminal  or  unlawful  and  notes.    In  some  states  the  offence 

means."    See,  also,  2  Bish,  Crim.  Law  is  defined  by  statute.  See  Wash.  Crim. 

(7th  Ed.),  §   171;   3  Greenl.  Evid.,  §  Law   (3d  Ed.),  41  and  local  statutes. 

89;    Clark's    Crim.    Law,    142;    Spies  5.  Consult    the    federal    and    state 

V.  People,  122  111.  1.     The  gist  of  the  statutes. 

<;rime  is  in  the  unlawful  combination  6.  Clark's     Crim.     Law,      385;      3 

and  no  farther  overt  act  is  necessary.  Greenl.    Ev.,    §    188;    Rev.    Stat.    111. 

It  cannot  be  committed  by  less  than  1874,  387,  §  225;  2  Comp.  Laws  Mich, 

two  persons.     It  cannot,  therefore,  be  1871,    §    7654;    Code    Iowa    1873,    § 


C80  Offences  AGAI^"ST  Public  Justice.      [Book  IV. 

no  notice  of  any  perjury  but  such  as  is  committed  in  some 
court  of  justice  having  power  to  administer  an  oath,  or  be- 
fore some  magistrate  or  proper  officer  invested  with  a 
similar  authority,  in  some  proceedings  relative  to  a  civil 
suit  or  a  criminal  prosecution.  The  perjury  must  also  be 
corrupt  (that  is,  committed  malo  animo),  wilful,  positive, 
and  absolute;  not  upon  surprise  or  the  like;  it  also  must  be 
in  some  j^oint  material  to  the  question  in  dispute. .  [It  was 
a  misdemeanor  at  common  law.] 

Subornation  of  perjury  is  the  offence  of  procuring  an- 
other to  take  such  a  false  oath  as  constitutes  perjury  in  the 
principal.^  [138]  The  punishment  of  perjury  and  suborna- 
tion at  common  law  has  been  various.  It  was  anciently 
death,  afterwards  banishment  or  cutting  out  the  tongue,, 
then  forfeiture  of  goods,  and  now  it  is  fine  and  imprison- 
ment and  never  more  to  be  capable  of  bearing  testimony. 
But  the  statute  5  Eliz.  c.  9  (if  the  offender  be  prosecuted 
thereon),  inflicts  the  penalty  of  perpetual  infamy  and  a  fine 
of  401.  on  the  suborner,  and  in  default  of  payment,  imprison- 
ment for  six  months,  and  to  stand  with  both  ears  nailed  to 
the  pillory.  Perjury  itself  is  thereby  punished  with  six 
months'  imprisonment,  perpetual  infamy,  and  a  fine  of  20/., 
or  to  have  both  ears  nailed  to  the  pillory.  But  the  prosecu- 
tion is  usually  carried  on  for  the  offence  at  common  law. 

3936;   Rev.  Stat.*  N.  Y.,  pt.  4,  ch.  1,  Clark's  Crim.  Law,  388;  Wood  v.  Peo- 

tit.   4,    §    1.      An    extra-judicial    oath  pie,  59  N.  Y.   117. 

does  not  constitute  perjury.     2  Bish.  Where  the  crime  is  defined  by  stat- 

Crira.    Law    (4th   Ed.),    §§    984,    991,  ute,  as  it  frequently  is,  the  elementa 

992;   Wash.  Crim.  Law    (3d  Ed.),  89  of    the   offence   are   substantially    the 

and  cases  cited.  same;  not  unfrequently  extra-judicial 

As  to  the  form  of  administering  false  swearing  is  made  perjury  by 
the  oath,  see  the  leading'  case  of  Omi-  statute.  Consult  the  local  statutes, 
chund  V.  Barker,  Willes.  538;  1  Smith  Perjury  cannot  be  committed  jointly- 
Lead.  Cas.  535  (the  witnesses  in  this  by  several  persons,  though  it  is  said 
case  professed  the  Gentoo  religion  and  one  may  be  charged  with  perjury  and 
were  sworn   according  to  its   forms),  another  with  subornation  in  the  same 

The  false  testimony  must   be  will-  indictment.       Com.     v.     Devine,     155 

ful  and  corrupt.     Clark's  Crim.  Law,  Mass.    224. 

387:   State  v.  Hascall,  6  N.  H.  352.  7.  See  Clark's  Crim.  Law  (2*1  Ed.), 

The  testimony  must  also  be  mate-  385.     This   is   an  offence   at   common 

rial  to  the  issue  or  matter  of  inquiry,  law    and    usuallj    also    by    statute. 


Chap.  X.]       Offences  against  Public  Justice.  681 

17.  Bribery^  is  tlie  next  species  of  offence  against  public 
justice,  which  is  when  a  judge  or  other  person  concerned  in 
the  administration  of  justice  takes  any  undue  reward  to 
influence  his  behavior  in  his  office.  [139]  In  England  this 
offence  of  taking  bribes  is  punished,  in  inferior  officers,  with 
fine  and  imprisonment,  and  in  those  who  offer  a  bribe, 
though  not  taken,  the  same.  [140]  But  in  judges,  espe- 
cially the  superior  ones,  it  hath  been  always  looked  upon 
as  so  heinous  an  offence,  that  the  Chief  Justice  Thorpe  was 
hanged  for  it  in  the  reign  of  Edward  III.  By  a  statute, 
11  Hen.  IV.,  all  judges  and  officers  of  the  king  convicted  of 
bribery  shall  forfeit  treble  the  bribe,  be  punished  at  the 
king's  will,  and  be  discharged  from  the  king's  service 
forever. 

18.  Embracery  is  an  attempt  to  influence  a  jury  corruptly 
to  one  side  by  promises,  persuasions,  entreaties,  money,  en- 
tertainments, and  the  like.^  The  punishment  for  the  per- 
son embracing  is  by  fine  and  imprisonment,  and  for  the 
juror  so  embraced,  if  it  be  by  taking  money,  the  punishment 
is  (by  divers  statutes  of  the  reign  of  Edward  III.),  per- 
petual infamy,  imprisonment  for  a  year,  and  forfeiture  of 
the  tenfold  value. 

19.  The  false  Terdict  of  jurors,  whether  occasioned  by  embracery  or 
not,  was  anciently  considered  as  criminal,  and  therefore  exemplarily 
punished  by  attaint  in  the  manner  formerly  mentioned.     [Obsolete.! 

20.  Another  offence  of  the  same  species  is  the  negligence 
of  public  officers  intrusted  with  the  administration  of  jus- 
tice, as  sheriffs,  coroners,  constables,  and  the  like,  which 
makes  the  offender  liable  to  be  fined,  and  in  very  notorious 
cases  will  amount  to  a  forfeiture  of  his  office  if  it  be  a 
beneficial  one. 

Wash.  Crim.  Law   (3d  Ed.),.  92;   Mc-  officer   be   de  facto   and  not   de  jure. 

Clain's  Crim.  Law,  §  893.  State  v.   Gardener,   53   Ohio   St.    145. 

8.  Bribery    may    be    committed    by  The  offence  is  usually  defined  by  stat- 

eitliPr  giving  or  receiving  a  reward  to  ute. 

influence  an    official   act,   whether   of  9.  Clark's  Crim.  Law,  380;   People 

a   judicial    or    other   officer.      Clark's  v.  Myers,  70  Cal.  532,  and  local  stat- 

Crim.    Law    (2d    Ed.),    389;    2    Bish.  utes. 

Xew    Crim.    Law.    §    85;     McClain's  This  offence  in  practice  is  usually 

Crim.  Law,  §  896.    It  suffices  that  the  punished  as   a  contempt. 


682  Offences  against  Public  Justice.      [Book  IV. 

21.  There  is  yet  another  offence  against  public  justice 
which  is  a  crime  of  deep  malignity.  [141]  This  is  the 
oppression  and  tyrannical  partiality  of  judges,  justices,  and 
other  magistrates,  in  the  administration  and  under  the  color 
of  their  office.  However,  when  prosecuted,  either  by  im- 
peachment in  parliament  or  by  information  in  the  Court 
of  King's  Bench  (according  to  the  rank  of  the  offenders), 
it  is  sure  to  be  severely  punished  with  forfeiture  of  their 
offices  (either  consequential  or  immediate),  fines,  imprison- 
ment, or  other  discretionary  censure,  regulated  by  the  na- 
ture and  aggravations  of  the  offence  committed. 

22.  Lastly,  extortion  is  an  abuse  of  public  justice  which 
consists  in  any  officer's  unlawfully  taking,  by  color  of  his 
office,  from  any  man  any  money  or  thing  of  value  that  is 
not  due  to  him,  or  more  than  is  due  or  before  it  is  due.  The 
punishment  is  fine  and  imprisonment,  and  sometimes  a  for- 
feiture of  the  office.^ 

1.  Usually    regulated    by    express 
statute. 


Chap.  XI.]     Offences  against  the  Public  Peace.  683 


CHAPTER  XL 

OF  offences  against  the  public  peace. 

These  offences  are  either  such  as  are  an  actual  breach  of 
the  peace,  or  constructively  so  by  tending  to  make  others 
break  it.  [142]  Both  of  these  species  are  also  either  felo- 
nious or  not  felonious.  The  felonious  breaches  of  the  peace 
are  strained  up  to  that  degree  of  malignity  by  virtue  of  sev- 
eral modern  statutes,  and  particularly, 

tl.  The  riotous  assembling  of  twelre  persons  or  more,  and  not  dis- 
persing upon  proclamation;  2.  Unlawful  hunting  in  disguise;  3.  Know- 
ingly to  send  any  letter  without  a  name,  or  with  a  fictitious  name,  de- 
manding money,  Tenison,  or  any  other  valuable  thing,  or  threatening 
(without  any  demand)  to  kill  any  of  the  king's  subjects,  or  to  fire  their 
houses,  etc.;  4.  To  pull  down  or  destroy  any  lock,  sluice,  or  floodgate 
erected  by  authority  of  parliament  on  a  navigable  river;  or  maliciously 
to  pull  down  or  otherwise  destroy  any  turnpike-gate  or  fence,  toll-house 
or  weighing-engine  thereunto  belonging,  erected  by  authority  of  parlia- 
ment, etc.;  were  respectively  felonies  by  statute.] 

The  remaining  offences  against  the  public  peace  are 
merely  misdemeanors,  and  not  felonies;  as 

5.  Affrays  (from  affraier,  to  terrify)  are  the  fighting  of 
two  or  more  persons  in  some  public  place,  to  the  terror  of 
his  majesty's  subjects;^  for  if  fighting  be  in  private,  it  is 
no  affray,  but  an  assault.  [145]  Affrays  may  be  suppressed 
by  any  private  person  present,  who  is  justifiable  in  endeav- 
oring to  part  the  combatants,  whatever  consequence  may 
ensue.  But  more  especially  the  constable  or  other  similar 
officer,  however  denominated,  is  bound  to  keep  the  peace, 
and  to  that  purpose  may  break  open  doors  to  suppress  an 
affray  or  apprehend  the  affrayers,  and  may  either  carry 
them  before  a  justice  or  imprison  them  by  his  own  authority 
for  a  convenient  space  till  the  heat  is  over,  and  may  then 
perhaps  also  make  them  find  sureties  for  the  peace.     The 

1.  Clark's   Crim.  Law,   398.      It   is 
a  misdemranor  at  common  law.     Id. 


684  Offences  against  the  Public  Peace.     [Book  IV. 

punisliment  of  common  affrays  is  by  fine  and  imprisonment. 
Two  persons  may  be  guilty  of  an  affray  r  but 

6.  Riots,  routs,  and  unlawful  assemblies  must  have  ihree 
persons  at  least  to  constitute  them.^  [146]  An  unlawful 
assembly  is  when  three  or  more  do  assemble  themselves 
together  to  do  an  unlawful  act,  as  to  pull  down  enclosures, 
to  destroy  a  warren  or  the  game  therein,  and  part  without 
doing  it,  or  making  any  motion  towards  it."*  A  rout  is  where 
three  or  more  meet  to  do  an  unlawful  act  upon  a  common 
quarrel,  as  forcibly  breaking  down  fences  upon  a  right 
claimed  of  common  or  of  way,  and  make  some  advances 
towards  it.^  A  riot  is  where  three  or  more  actually  do  an 
unlawful  act  of  violence,  either  with  or  without  a  common 
cause  or  quarrel,  as  if  they  beat  a  man;  or  hunt  and  kill 
game  in  another's  park,  chase,  warren,  or  liberty;  or  do 
any  other  unlawful  act  with  force  and  violence;  or  even  do 
a  lawful  act,  as  removing  a  nuisance  in  a  violent  and  tumul- 
tuous manner.® 

7.  Nearly  related  to  this  head  of  riots  Is  the  offence  of  tnmbuluous 
petitioning,  which  was  carried  to  an  enormous  height  in  the  times  pre- 
ceding the  Grand  Rebellion.  [147]  Wherefore  by  statute  13  Car.  II.  st. 
1,  c.  5,  it  is  enacted  that  not  more  than  twenty  names  shall  be  signed  to 
any  petition  to  the  king  or  either  house  of  parliament  for  any  alteration 
of  matters  established  by  law  in  church  or  state,  unless  the  contents 
thereof  be  previously  approved,  in  the  country  by  three  justices  or  the 
majority  of  the  grand  jury  at  the  assises  or  quarter-sessions,  and  in 
London  by  the  Lord  Mayor,  aldermen,  and  Common  Council,  and  that 
no  petition  shall  be  delivered  by  a  company  of  more  than  ten  persons, 
on  pain  in  either  case  of  incurring  a  penalty  not  exceeding  100^  and 
three  months'  imprisonment.  [148] 

8.  An  eighth  offence  against  the  public  peace  is  that  of  a 
forcible  entry  or  detainer,  which  is  committed  by  violently 
taking  or  keeping  possession  of  lands  and  tenements,  with 

2.  One  person  alone  cannot  commit  5.  Id.;  State  v.  Sumner,  2  Speers, 
it.     Id.  599. 

3.  Clark's  Crim.  Law,  395  and  cases  6.  Clark's  Crim.  Law,  395-397; 
cited.                                             '  State   v.   Brazil,    Rice    (S.   C.),-  257; 

4.  Id.  State  v.  Snow,  18  Me.  346;  Green  v. 

State,  109  Ga.  536. 


Chap.  XI.]     Offences  against  the  Public  Peace.  685 

menaces,  force,  and  arms,  and  without  the  authority  of  law.'' 
This  was  formerly  allowable  to  every  person  disseised  or 
turned  out  of  possession,  unless  his  entry  was  taken  away 
or  barred  by  his  own  neglect  or  other  circumstances.  But 
the  entry  now  allowed  by  law  is  a  peaceable  one,  that  for- 
bidden is  such  as  carried  on  and  maintained  with  force,  with 
violence  and  unusual  weapons.  By  the  statute  5  Ric.  II. 
st.  1,  c.  8,  all  forcible  entries  are  punished  with  imprison- 
ment and  ransom  at  the  king's  will.  And  by  the  several 
statutes  of  15  Eic.  11.  c.  2,  8  Hen.  VI.  c.  9,  31  Eliz.  c.  11,  and 
21  Jac.  I.  c.  15,  upon  any  forcible  entry  or  forcible  detainer 
after  peaceable  entry  into  any  lands  or  benefices  of  the 
church,  one  or  more  justices  of  the  peace,  taking  sufficient 
power  of  the  county,  may  go  to  the  place,  and  there  record 
the  force  upon  his  own  view,  as  in  case  of  riots,  and  upon 
such  conviction  may  commit  the  offender  to  gaol  till  he 
makes  fine  and  ransom  to  the  king.  And  moreover  the  jus- 
tice or  justices  have  power  to  summon  a  jury  to  try  the 
forcible  entry  or  detainer  complained  of,  and  if  the  same 
be  found  by  that  jury,  then,  besides  the  fine  on  the  offender, 
the  justices  shall  make  restitution  by  the  sheriff  of  the  pos- 
session, without  inquiring  into  the  merits  of  the  title,  for 
the  force  is  the  only  thing  to  be  tried,  punished,  and  reme- 
died by  them ;  and  the  same  may  be  done  by  indictment  at 
the  general  sessions.  But  this  provision  does  not  extend 
to  such  as  endeavor  to  maintain  possession  by  force,  where 
they  themselves  or  their  ancestors  have  been  in  the  peace- 
able enjoyment  of  the  lands  and  tenements  for  three  years 
immediately  preceding.   [149] 

9.  The  offence  of  riding  or  going  armed  with  dangerous 
or  unusual  weapons  ^  is  a  crime  against  the  public  peace,  by 
terrifying  the  good  people  of  the  land,  and  is  particularly 
prohibited  by  the  statute  of  Northampton,  2  Edw.  III.  c.  3, 

7.  Clark's  Crim.  Law  ( 2d  Ed. ) ,  399  8.  As   to    the   right   to  bear   arms, 

and    cases   cited;    Wash.    Crim.    Law  see   Cooley's   Const.   Lim.    (7th   Ed.), 

(3d  Ed.),  51  and  cases  cited.  498,   499   and   notes.      By   the   weight 

Forcible  entry  and  detainer,  while  of  authority  statutes  prohibiting  the 

offences  at  common   law,   are  in  this  carrying    of    concealed    weapons    are 

country  usually  made  crimes  by    stat-  constitutional.     Id.,  499,  note, 
ute. 


686  Offences  against  the  Public  Peace.     [Book  IV. 

upon  pain  of  forfeiture  of  the  arms,  and  imprisonment  dur- 
ing the  king's  pleasure. 

10.  Spreading  false  news,  to  make  discord  between  the 
king  and  nobility,  or  concerning  any  great  man  of  the 
realm,  is  punishable  by  common  law  with  fine  and  imprison- 
ment, which  is  confirmed  by  statutes  Westm.  1,  3  Edw.  I. 
c.  34,  2  Ric.  II.  St.  1,  c.  5,  and  12  Ric.  II.  c.  11. 

11.  False  and  pretended  prophecies,  with  intent  to  dis- 
turb the  peace,  are  equally  unlawful  and  more  penal,  as  they 
raise  enthusiastic  jealousies  in  the  people,  and  terrify  them 
with  imaginary  fears.  Such  false  and  pretended  prophecies 
were  punished  capitally  by  statute  1  Edw.  VI.  c.  12,  which 
was  repealed  in  the  reign  of  Queen  Mary.  And  now  by  the 
statute  of  5  Eliz.  c.  15,  the  penalty  for  the  first  offence  is 
a  fine  of  ten  pounds  and  one  year's  imprisonment;  for  the 
second,  forfeiture  of  all  goods  and  chattels,  and  imprison- 
ment during  life. 

12.  Besides  actual  breaches  of  the  peace,  anything  that 
tends  to  provoke  or  excite  others  to  break  it  is  an  offence 
of  the  same  denomination.  [150]  Therefore  challenges  to 
fight  either  by  word  or  letter,  or  to  be  the  bearer  of  such 
challenge,  are  punishable  by  fine  and  imprisonment  accord- 
ing to  the  circumstances  of  the  offence.^ 

13.  Of  a  nature  very  similar  to  challenges  are  libels,* 
lihelli  famosi,  which,  taken  in  their  largest  and  most  ex- 
tensive sense,  signify  any  writings,  pictures,  or  the  like,  of 
an  immoral  or  illegal  tendency,  but,  in  the  sense  under 
which  we  are  now  to  consider  them,  are  malicious  defama- 
tions of  any  person,  and  especially  a  magistrate,  made 
public  by  either  printing,  writing,  signs,  or  pictures,  in  or- 
der to  provoke  him  to  wrath  or  expose  him  to  public  hatred, 
contempt,  and  ridicule.^     The  direct  tendency  of  these  libels 

9.  Clark's  Crim.  Law,  394.    No  act-  Publication   is  necessary  to  consti- 

ual  figliting  is  necessary.     Id.  tute   criminal  libel.     Id.;    Swindle  v. 

Usually  made  statutory  oflFences  In  State,  2  Yerg   (Tenn.),  581. 

this  country.  Publication    of   defamatory   matter 

1.  Civil  actions  for  libel  have  al-  concerning  a  dead  person  is  a  libel 
ready   been   considered   ante.  if   calculated   to    bring    living    people 

2.  Clark's  Crim.  Law  (2d  Ed.),  into  hatred,  contempt  or  ridicule,  but 
400.  not    otherwise.      Rex    v.    Topham,    4 


Chap.  XL]     Offences  against  the  Public  Peace.  687 

is  the  breach  of  the  public  peace,  by  stirring  up  the  objects 
of  them  to  revenge,  and  perhaps  to  bloodshed.  The  com- 
munication of  a  libel  to  any  one  person  is  a  publication  in 
the  eye  of  the  law,  and  therefore  the  sending  an  abusive 
letter  to  a  man  is  as  much  a  libel  as  if  it  were  openly  printed, 
for  it  equally  tends  to  a  breach  of  the  peace.  For  the  same 
reason  it  is  immaterial  with  respect  to  the  essence  of  a  libel 
whether  the  matter  of  it  be  true  or  false,  since  the  provoca- 
tion and  not  the  falsity  is  the  thing  to  be  punished  crim- 
inally, though,  doubtless,  the  falsehood  of  it  may  aggravate 
its  guilt  and  enhance  its  punishment.  In  a  civil  action  a 
libel  must  appear  to  be  false  as  well  as  scandalous.  But  in 
a  criminal  prosecution,  the  tendency  which  all  libels  have  to 
create  animosities,  and  to  disturb  the  public  peace,  is  the 
whole  that  the  law  considers.  [151]  And  therefore  in  such 
prosecutions  the  only  points  to  be  inquired  into  are,  first, 
the  making  or  publishing  of  the  book  or  writing,  and,  sec- 
ondly, whether  the  matter  be  criminal;  and  if  both  these 
points  are  against  the  defendant,  the  offence  against  the 
public  is  complete.^ 

In  this  and  the  other  instances  which  we  have  lately  con- 
sidered, where  blasphemous,  immoral,  treasonable,  schis- 
matical,  seditious,  or  scandalous  libels  are  punished  by  the 
English  law,  the  liberty  of  the  press,  properly  understood, 
is  by  no  means  infringed  or  violated.  The  liberty  of  the 
press  consists  in  laying  no  previous  restraints  upon  publica- 
tions, and  not  in  freedom  from  censure  for  criminal  matter 
when  published.   [152]     Every  freeman  has  an  undoubted 

Term.  Rep.   126;   Clark's  Crim.  Law,  libel;  but  now  the  general  rule  in  the 

400.  United   States   is.  that  in   a  criminal 

Malice  is  necessary,  but  may  be  in-  prosecution   for  libel,   the  truth   is   a 

ferred   from   the   fact  of   publication.  defence  when   published  with  a  good 

Clark's    Crim.    Law,    404;     Com.    v.  motive  and  for  a  justifiable  end;  sub- 

Blanding,   3   Pick   304.  stantially  the  same  rule  now  prevails 

As    to    what    communications    are  in    England.      Cooley'a    Const.    Lim. 

privileged,    see    Clark's    Crim.    Law,  (7th  Ed.),  656. 

402;   Cooley's  Const.  Lim.   (7th  Ed.),  3.  The    rule    at   common    law    was 

€09,  611,  616-636.  changed  by  Mr.  Fox's  Libel  Act.     See 

At  common  law  the  rule  was:   the  Cooley's  Const.  Lim.   (7th  Ed.),  652- 

greater    the    truth,    the    greater    the  655. 


688  Offences  against  the  Public  Peace.     [Book  IV. 

right  to  lay  what  sentiments  he  pleases  before  the  public; 
to  forbid  this  is  to  destroy  the  freedom  of  the  press;  but  if 
he  publishes  what  is  improper,  mischievous,  or  illegal,  he 
must  take  the  consequencfes  of  his  own  temerity."*  To  sub- 
ject the  press  to  the  restrictive  power  of  a  licenser,  as  was 
formerly  done  both  before  and  since  the  Revolution,  is  to 
subject  all  freedom  of  sentiment  to  the  prejudices  of  one 
man,  and  make  him  the  arbitrary  and  infallible  judge  of 
all  controverted  points  in  learning,  religion,  and  govern- 
ment. But  to  punish  (as  the  law  does  at  present)  any  dan- 
gerous or  offensive  writings,  which,  when  published,  shall 
on  a  fair  and  impartial  trial  be  adjudged  of  a  pernicious 
tendency,  is  necessary  for  the  preservation  of  peace  and 
good  order,  of  government  and  religion, —  the  only  solid 
foundations  of  civil  liberty.  Thus  the  will  of  individuals 
is  still  left  free,  the  abuse  only  of  that  free-will  is  the  object 
of  legal  punishment.  [The  press  became  properly  free  in 
1694,  and  has  ever  since  so  continued.] 

4.  For  a  learned  and  exhaustive  dis-  Ed.),  596.    Every  student  should  read 

cussion  of  liberty  of  speech  and  of  the  this    chapter,    if    no    more,    of    this 

press,  with  a  full  citation  of  author-  learned  and  useful  treatise, 
itics,   see   Cooley's  Const.   Lim.    (7tb 


CiTAi*.  XII.]     Offences  against  Public  Tbade.        .'  689 

CHAPTER  XII. 

/  OF  OFFENCES  AGAINST  PUBLIC  TRADE. 

Offences  against  public  trade,  like  those  of  the  preceding 
classes,  are  either  felonious  or  not  felonious.  [154]  Of  the 
first  sort  are, 

1.  Owling,  so  called  from  its  being  usually  carried  on  in  the  night, 
which  is  the  offence  of  transporting  wool  or  sheep  out  of  this  kingdom, 
to  the  detriment  of  its  staple  manufacture.  This  was  forbidden  at  com- 
mon law,  and  more  particularly  by  statute  11  Edw.  III.  c.  1,  when  the 
importance  of  our  woollen  manufacture  was  first  attended  to,  and  there 
are  now  many  later  statutes  relating  to  this  offence.     [Repealed.] 

2.  Smuggling,  or  the  offence  of  importing  goods  without 
paying  the  duties  imposed  thereon  by  the  laws  of  the  cus- 
toms and  excise,  is  an  offence  generally  connected  and  car- 
ried on  hand  in  hand  with  the  former.  [155]  This  is  re- 
strained by  a  great  variety  of  statutes,  which  inflict  pecun- 
iary penalties  and  seizure  of  the  goods  for  clandestine 
smuggling,  and  affix  the  guilt  of  felony,  with  transporta- 
tion for  seven  years,  upon  more  open,  daring,  and  avowed 
practices.^ 

3.  Another  offence  against  public  trade  is  fraudulent  bankruptcy.^ 
[156] 

4.  Usury,  which  is  an  unlawful  contract  upon  the  loan  of  money  to 
receive  the  same  again  with  exorbitant  increase. 

5.  Cheating  is  another  offence  more  immediately  against 
public  trade.  [157]  Hither  may  be  referred  that  prodigi- 
ous multitude  of  statutes  which  are  made  to  restrain  and 
punish  deceits  in  particular  trades,  and  which  are  enumer- 
ated by  Hawkins  and  Burn,  but  are  chiefly  of  use  among 
the  traders  themselves.  The  offence  of  selling  by  false 
weights  and  measures  is  reducible  to  this  head  of  cheating.^ 

1.  This    is    an    offence   against   the  2.  See,  generally.  Collier  on  Banl<- 

United  States.     See  the  federal  stat-       ruptoy,   10th  Ed.  1914. 
utes.  3.  The  subject  of  usury  is  in  this 

44 


690 


Offences  against  Public  Trade.        [Book  IV. 


Now  the  general  punishment  for  all  frauds  of  this  kind,  if 
indicted  (as  they  may  be)  at  common  law,  is  by  fine  and 
imprisonment.  [158]  Lastly,  any  deceitful  practice  in  coz- 
ening another  by  artful  means,  whether  in  matters  of  trade 
or  otherwise,  as  by  playing  with  false  dice,  or  the  like,  is 
punishable  with  fine,  imprisonment,  and  pillory.  And  by 
the  statutes  33  Hen.  VIII.  c.  1,  and  30  Geo.  II.  c.  4,  if  any 
man  defrauds  another  of  any  valuable  chattels  by  color  of 
any  false  token,  counterfeit  letter,  or  false  pretence,*  or 
pawns  or  disposes  of  another's  goods  without  the  consent  of 
the  owner,  he  shall  suffer  such  punishment  by  imprison- 
ment, fine,  pillory,  transportation,  whipping,  or  other  cor- 
poral pain,  as  the  court  shall  direct. 

6.  The  offence  of  forestalling  the  market  is  also  an  offence 
against  public  trade.     This,  which  (as  well  as  the  two  fol- 


country  entirely  statutory;  and  a 
great  diversity  of  provisions'  exists. 
The  taking  of  usury  is  not  generally 
made  a  criminal  offence,  though  in 
some  states  it  is  a  misdemeanor.  Con- 
sult the  local  statutes. 

4.  "  Cheating  by  usp  of  false 
weights  or  false  measures  is  indict- 
able at  common  law.  So,  if  done  by 
false  tokens,  which  were  some  real 
visible  marks  or  things  such  as  a 
key  or  ring,  made  use  of  before  the 
general  use  of  written  orders,  to  in- 
dicate that  the  person  possessing  it 
may  be  trusted  as  coming  from  the 
owner  of  such  token."  Washburn's 
Crim.  Law  (3d  Ed.),  37,  38;  Com. 
V.  Warren,  6  Mass.  72.  "  But  obtain- 
ing goods  by  false  pretences  is  not  an 
offence  at  common  law."  Wash. 
Crim.  Law,  38,  citing  Com.  v.  Call, 
21  Pick.  520.  See,  generally,  Clark's 
Crim.  Law   (2d  Ed.),  314,  316. 

Obtaining  goods  by  mere  false  pre- 
tences not  being  indictable  at  com- 
mon law,  statutes  have  been  enacted 
probably  in  all  the  states  remedying 


this     defect     of     the     common     law. 
Clark's  Crim.  Law   (2d  Ed.),  316. 

The  offence  is  generally  defined  as 
"  the  knowingly  and  designedly  ob- 
taining of  the  property  of  another  by 
false  pretences,  with  the  intent  to  de- 
fraud Id.  The  pretence  must  be  a 
false  representation  as  to  some  past 
or  existing  fact  and  not  a  mere  ex- 
pression of  opinion  or  a  promise.  The 
pretence  must  be  knowingly  false, 
made  with  intent  and  to  some  extent 
calculated  to  defraud  and  it  must  in 
fact  deceive  and  defraud.  The  person 
defrauded  must  not  be  guilty  of  gross 
carelessness.  All  the  circumstances 
and  the  intelligence  of  the  person  de- 
frauded are  to  be  considered.  Mere 
credulity  on  the  part  of  the  person 
defrauded  is  not  a  defence.  See  the 
whole  subject  well  considered  and  the 
cases  collected  in  Mr.  Clark's  treatise 
on  Criminal  Law  (2d  Ed.),  316-323. 
See  some  of  the  statutes  in  2  Whart. 
Crim.  Law,  §  2068  et  seq.;  Rev.  Stat. 
111.  (1874),  366.  §  96  et  seq.;  Code  of 
Iowa,  1873,  636,  §  4073;  2  Comp. 
Laws  Mich.,  1871,  §  7590. 


Chap.  XII.]     Offences  against  Public  Trade.  691 

lowing)  is  also  an  offence  at  common  law,  was  described  by 
statute  5  &  6  Edw.  VI.  c.  14,  to  be  the  buying  or  contracting 
for  any  merchandise  or  victual  coming  in  the  way  to  market, 
or  dissuading  persons  from  bringing  their  goods  or  pro- 
visions there,  or  persuading  them  to  enhance  the  price 
when  there, —  any  of  which  practices  make  the  market 
dearer  to  the  fair  dealer. 

7.  Regrating  was  described  by  the  same  statute  to  be  the 
buying  of  corn  or  other  dead  victual  in  any  market,  and 
selling  it  again  in  the  same  market,  or  within  four  miles 
of  the  place;  for  this  also  enhances  the  price  of  the  pro- 
visions, as  every  successive  seller  must  have  a  successive 
profit. 

8.  Engrossing  was  also  described  to  be  the  getting  into 
one's  possession  or  buying  up  large  quantities  of  corn  or 
other  dead  victuals,  with  intent  to  sell  them  again.  This 
must  of  course  be  injurious  to  the  public,  by  putting  it  in 
the  power  of  one  or  two  rich  men  to  raise  the  price  of  pro- 
visions at  their  own  discretion.  And  so  the  total  engross- 
ing of  any  other  commodity  with  an  intent  to  sell  it  at 
an  unreasonable  price  is  an  offence  indictable  and  finable 
at  the  common  law.  [159]  And  the  general  penalty  for 
these  three  offences  by  the  common  law  (for  all  the  statutes 
concerning  them  were  repealed  by  12  Geo.  III.  c.  71)  is,  as 
in  other  minute  misdemeanors,  discretionary  fine  and  im- 
prisonment.^ 

9.  Monopolies  are  much  the  same  offence  in  other 
branches  of  trade  that  engrossing  is  in  provisions,  being  a 
license  or  privilege  allowed  by  the  king  for  the  sole  buying 
and  selling,  making,  working,  or  using  of  anything  what- 
soever whereby  the  subject  in  general  is  restrained  from 
that  liberty  of  manufacturing  or  tracing  which  he  had  be- 

5.  These  three  offences  have  been  the  purpose  of  selling  for  grossly  ex- 
abolished  by  statute  7  &  8  Vict.,  c.  tortionate  prices  is  still  indictable  at 
24.  Mr.  Clark  states  that  they  have  common  law.  Id.;  2  Whart.  Crim. 
not  been  recognized  as  common  law  Law,  §§  1849-1851 ;  Morris  Run  Ck)al 
crimes  in  this  country  (Clark's  Crim.  Co.  v.  Coal  Co.,  68  Pa.  St.  173,  137. 
Law  [2d  Ed.],  410;  though  Mr.  See,  also,  Clark's  Crim,  Law,  146  and 
Wharton  states  that  obtaining  a  mo-  notes, 
nopoly  of  a  necessary  commodity  for 


692  Offences  against  Public  Trade.        [Book  IV. 

fore.  These  had  been  carried  to  an  enormous  height  during 
the  reign  of  Queen  Elizabeth,  and  were  heavily  complained 
of  by  Sir  Edward  Coke  in  the  beginning  of  the  reign  of 
King  James  I.,  but  were  in  great  measure  remedied  by 
statute  21  Jac.  I.  c.  3,  which  declares  such  monopolies  to 
be  contrary  to  law  and  void,  except  as  to  patents  not  ex- 
ceeding the  grant  of  fourteen  years  to  the  authors  of  new 
inventions,  and  except  also  patents  concerning  printing, 
saltpetre,  gunpowder,  great  ordnance,  and  shot;  and  monop- 
olists are  punished  with  the  forfeiture  of  treble  damages 
and  double  costs  to  those  whom  they  attempt  to  disturb. 
Combinations  also  among  victuallers  or  artificers  to  raise 
the  price  of  provisions  or  any  commodities,  or  the  rate  of 
labor,  are  in  many  cases  severely  punished  by  particular 
statutes.® 

10.  To  exercise  a  trade  in  any  town  withont  having  previously  served 
as  an  apprentice  for  seven  years  is  looked  upon  to  be  detrimental  to 
public  trade,  upon  the  supposed  want  of  sufficient  skill  in  the  trader, 
and  therefore  is  punished  by  statute  5  Eliz.  c.  4,  with  the  forfeiture  of 
forty  shillings  by  the  month. 

11.  Lastly,  to  prevent  the  destruction  of  our  home  manufactures,  the 
transporting  and  seducing  our  artists  to  settle  abroad  is  prohibited  by 
the  statutes  5  Geo.  I.  c.  27,  and  23  Geo.  II.  c.  13. 

6.  See  generally,  Clark's  Crim.  Law 
(2d  Ed.)^  146-148  and  cases  cited. 


Chap.  XIIL]     Offences  against  Public  Health.  693 


CHAPTER  XIIL 

OF    OFFENCES    AGAINST    THE    PUBLIC     HEALTH     AND    THE    PUBLIC 
POLICE  OR  ECONOMY. 

1.  The  first  of  these  offences  is  a  felony  [161]  [and  relates  to  the  isola- 
tion of  persons  infected  with  the  plague,  or  dwelling  in  an  infected  house. 
The  statutes  upon  the  subject  of  quarantine  are  also  referred  to  in  this 
connection.     Not  applicable  to  this  country.] 

["  It  is  a  misdemeanor  at  common  law  to  expose  a  per- 
son laboring  under  an  infectious  disorder,  as  the  small- 
pox, in  the  streets  or  other  public  places.^ 

2.  A  second,  but  much  inferior  species  of  offence  against 
public  health  is  the  selling  of  unwholesome  provisions. 
[162]  To  prevent  which  the  statute  51  Hen.  III.  st.  6,  and 
the  ordinance  for  bakers,  c.  7,  prohibit  the  sale  of  corrupted 
wine,  contagious  or  unwholesome  flesh.  ["  It  is  a  misde- 
meanor at  common  law  to  give  any  person  injurious  food 
to  eat,  whether  the  offender  be  excited  by  malice  or  a  desire 
of  gain."]  2  These  are  all  the  offences  which  may  properly 
be  said  to  respect  the  public  health. 

V.  The  last  species  of  offences  which  especially  affect  the 
commonwealth  are  those  against  the  public  police  or  econ- 
omy. By  the  public  police  and  economy  I  mean  the  due 
regulation  and  domestic  order  of  the  kingdom,  whereby  the 
individuals  of  the  state,  like  members  of  a  well-governed 
family,  are  bound  to  conform  their  general  behavior  to  the 
rules  of  propriety,  good  neighborhood,  and  good  manners, 
and  to  be  decent,  industrious,  and  inoffensive  in  their  re- 
spective stations.  This  head  of  offences  must  therefore  be 
very  miscellaneous,  as  it  comprises  all  such  crimes  as  es- 
pecially affect  public  society,  and  are  not  comprehended 
under  any  of  the  four  preceding  species.  These  amount, 
some  of  them  to  felony,  and  others  to  misdemeanors  only. 
Among  the  former  are: 

1.  4   M.   &    S.   73,   272.      See   post,      ■    2.  2  East.  P.  C.  822;   6  East.  133- 
Xuisances,    also    Clark's    Crim.    Law      141. 
(2d  Ed.),  347  and  cases. 


694  Offences  against  Public  Health.       [Book  IV. 

1.  The  offence  of  clandestine  marriages.  [163]  [Not  applicable  to  this 
country.] 

2.  Another  felonious  offence  is  what  some  have  corruptly 
called  bigamy,^  which  properly  signifies  being  twice  mar* 
ried,  but  is  more  justly  denominated  polygamy,  or  having 
a  plurality  of  wives  at  once.*  Such  second  marriage,  living 
the  former  husband  or  wife,  is  simply  void,  and  a  mere 
nullity  by  the  ecclesiastical  law  of  England.  [164]  With 
us  in  England  it  is  enacted  by  statute  1  Jac.  I.  c.  11,  that 
if  any  person,  being  married,  do  afterwards  marry  again, 
the  former  husband  or  wife  being  alive,  it  is  felony,  but 
within  the  benefit  of  clergy.  The  first  wife  in  this  case 
shall  not  be  admitted  as  a  witness  against  her  husband, 
because  she  is  the  true  wife;  but  the  second  may,  for  she  is 
indeed  no  wife  at  all;  and  so  vice  versa,  of  a  second  husband. 
This  act  makes  an  exception  to  five  cases  in  which  such 
second  marriage,  though  in  the  three  first  it  is  void,  is  yet 
no  felony.  1.  Where  either  party  hath  been  continually 
abroad  for  seven  years,  whether  the  party  in  England  hath 
notice  of  the  other's  being  living  or  not.  2.  Where  either 
of  the  parties  hath  been  absent  from  the  other  seven  years 

3.  This  is  a  statutory  crime  in  prob-  of  the  council  of  Lyons,  A.  D.  1274, 
ably  all  the  states.  The  statutes  gen-  held  under  pope  Gregory  X.  were 
erally  except  from  their  penalties  a  omni  privilegio  clericali  nudati,  et 
person  whose  husband  or  wife  has  coercioni  fori  secularis  addicti.  6 
been  absent  for  a  certain  number  of  Decretal,  1,  12.  This  canon  was 
y^ars  without  being  known  by  such  adopted  and  explained  in  England,  by 
person  to  be  living  within  that  time,  statute  4  Edw.  I.,  st.  3,  c.  5,  and 
and  those  legally  divorced  a  vinculo  bigamy  thereupon  became  no  uncom- 
from  the  first  marriage  before  the  mon  counter-plea  to  the  claim  of  the 
solemnization  of  the  second.  Clark's  benefit  of  clergy.  M,  40  Edw.  III., 
Crim.  Law  (2d  Ed.),  353.  In  some  42;  M.  11  Hen.  IV.,  11,  48;  M.  13 
of  the  states  the  statutes  prohibit  a  Hen.  IV.,  6  Staundf.  P.  C.  134.  The 
second  marriage  after  divorce.  See,  cognizance  of  the  plea  of  bigamy  was 
generally,  Id.,  355  and  notes.  declared  by  statute  18  Edw.  III.,  st. 

4.  3  Inst.  88.  Bigamy,  according  3,  c.  2,  to  belong  to  the  court  chris- 
to  the  canonists,  consisted  in  marry-  tian,  like  that  of  bastardy.  But  by 
ing  two  virgins  successively,  one  after  stat.  1  Edw.  VI.,  c.  12,  §  16,  bigamy 
the  death  of  the  other,  or  once  marry-  was  declared  to  be  no  longer  an  im- 
ing  a  widow.  Such  were  esteemed  in-  pediment  to  the  claim  of  clergy.  See 
capable  of  orders,  etc.,  and  by  a  canon  Dal.  21,  Dyer,  201. 


Chap.  XIII.]     Offences  against  Public  Health.  695 

within  this  kingdom,  and  the  remaining  party  hath  had  no- 
knowledge  of  the  other's  being  alive  within  that  time. 
3.  Where  there  is  a  divorce  (or  separation  a  mensa  et  tJwro) 
by  sentence  in  the  ecclesiastical  court.  4.  Where  the  first 
marriage  is  declared  absolutely  void  by  any  such  sentence, 
and  the  parties  loosed  a  vinculo.  Or,  5.  Where  either  of 
the  parties  was  under  the  age  of  consent  at  the  time  of  the 
first  marriage,  for  in  such  case  the  first  marriage  was  void- 
able by  the  disagreement  of  either  party,  which  the  second 
marriage  very  clearly  amounts  to.  But  if  at  the  age  of 
consent  the  parties  had  agreed  to  the  marriage,  which  cojn- 
pletes  the  contract,  and  is  indeed  the  real  marriage,  and 
afterwards  one  of  them  should  marry  again,  I  should  appre- 
hend that  such  second  marriage  would  be  within  the  reason 
and  penalties  of  the  act.  [165] 

3.  A  third  species  of  felony  against  the  good  order  and  economy  of 
the  kingdom  is  by  idle  soldiers  and  mariners  wandering  about  the  realm, 
or  persons  pretending  so  to  be,  and  abusing  the  name  of  that  honorable 
profession.     [Repealed.] 

4.  Outlandish  persons  calling  themselTes  Egyptians,  or  gypsies,  are 
another  object  of  the  severity  of  some  of  our  unrepealed  statutes.  [The 
act  of  5  Eliz.  c.  20,  is  repealed,  and  gypsies  are  now  only  punishable  as 
vagrants.] 

5.  To  descend  next  to  offences  whose  punishment  is  short 
of  death.  Common  nuisances  are  a  species  of  offence 
against  the  public  order  and  economical  regimen  of  the 
state,  being  either  the  doing  of  a  thing  to  the  annoyance  of 
all  the  king's  subjects  [i.  e.  of  the  community  at  large], 
or  the  neglecting  to  do  a  thing  which  the  common  good 
requires.  [167]  Common  nuisances  are  such  inconvenient 
and  troublesome  offences  as  annoy  the  whole  community  in 
general  and  not  merely  some  particular  person,  and  there- 
fore are  indictable  only  and  not  actionable  [unless  special 
damage  is  show^n].^     Of  this  nature  are  1.  Annoyances  in 

5.  See  ante,  note.  "  Whatever  public  taorals  and  sense  of  decency ; 
tends  to  endanger  life,  or.  gen-  whatever  shocks  the  religions  feelings* 
erat3  disease  and  affect  the  health  of  of  the  community  or  tends  to  its  .lis- 
the  community;   whatever  shocks  the  comfort,  is  generally,  at  common  law 


696  Offences  against  Public  Health.       [Book  IV. 

highways,  bridges,  and  public  rivers,  by  rendering  the 
same  inconvenient  or  dangerous  to  pass,  either  positively 
by  actual  obstructions,  or  negatively  by  want  of  reparations. 
For  both  of  these  the  person  so  obstructing,  or  such  indi- 
viduals as  are  bound  to  repair  and  cleanse  them,  or  (in  de- 
fault of  these  last)  the  parish  at  large,  may  be  indicted, 
distrained  to  repair  and  mend  them,  and  in  some  cases 
fined.  Where  there  is  a  house  erected  or  an  inclosure  made 
upon  any  part  of  the  king's  demesnes,  or  of  an  highway,  or 
common  street,  or  public  water,  or  such  like  public  things, 
it. is  properly  called  a  piirpresture.  2.  All  those  kinds  of 
nuisances  (such  as  offensive  trades  and  manufactures), 
which  when  injurious  to  a  private  man  are  actionable,  are, 
when  detrimental  to  the  public,  punishable  by  public  prose- 
cution, and  subject  to  fine,  according  to  the  quantity  of  the 
misdemeanor;  and  particularly  the  keeping  of  hogs  in  any 
city  or  market  town  is  indictable  as  a  public  nuisance.  [168] 
All  disorderly  inns  or  ale-houses,  bawdy-houses,  gaming- 
houses,^  sta(/e-plays  unlicensed,  booths  and  stages  for  rope- 
dancers,  mountebanks^  and  the  lijie,  are  public  nuisances, 
and  may  upon  indictment  be  suppressed  and  fined.  Inns 
in  particular,  being  intended  for  the  lodging  and  receipt  of 
travellers,  may  b©  indicted,  suppressed,  and  the  innkeepers 
fined,  if  they  refuse  to  entertain  a  traveller  w^ithout  a  very 
sufficient  cause;  for  thus  to  frustrate  the  end  of  their  in- 
stitution is  held  to  be  disorderly  behavior.  4,  By  statute 
10  &  11  W.  III.  c.  17,  all  lotteries  are  declared  to  be  public 
nuisances,  and  all  grants,  patents,  or  licenses  for  the  same 
to  be  contrary  to  law.  But  as  state-lotteries  have  for  many 
years  past  been  found  a  ready  mode  for  raising  the  supply, 

a     public     nuisance     and     a     crime."  6.  Private  gambling  is   not   a   nui- 

Clark's  Crim.  Law   (2d  Ed.),  346  and  sance  at  common   law;   but  gambling 

cases   cited    in    notes,   where   a   large  becomes   so    if   conducted   op'nly   and 

number     of     instances     are      stated,  notoriously.     Id..  349;   Lord  v.  State, 

"There   may   be   nuisances    in   public  16    N.   H.   325;    Kneffler   v.   Com.,   94 

deportment,  such  as  common  brawlers,  Ky.  359   (stock  gambling).     Many  of 

common    scolds,    common     barrators,  the  acts  and  conditions  that  were  nui- 

open   and   notorious   drunkenness,   in-  sances  at  common  law  have  also  been 

decent  and  public  exposure  of  the  per-  made   such   by   statute.     Consult   the 

son,"  etc.,   etc.     Id.,  348,  349.  local  statutes  and  ordinances  of  cities. 


Chap.  XIII.]     Offences  against  Public  Health.       '         697 

an  act  was  made,  19  Geo.  III.  c.  21,  to  license  and  regulate 
the  keepers  of  such  lottery-offices.  [State  lotteries  are  now 
abolished.]  5.  The  making  and  selling  of  fireworks  and 
squihs,  or  throwing  them  about  in  any  street,  is,  on  account 
of  the  danger  that  may  ensue  to  any  thatched  or  timber 
buildings,  declared  to  be  a  common  nuisance  by  statute  9  & 
10  W.  in.  c.  7,  and  therefore  is  punishable  by  fine.  [In- 
dictable also  at  common  law.]  And  to  this  head  we  may 
refer  (though  not  declared  a  common  nuisance)  the  making, 
keeping,  or  carriage  of  too  large  a  quantity  of  gunpowder 
at  one  time  or  in  one  place  or  vehicle,  which  is  prohibited 
by  statute,  12  Geo.  III.  c.  61,  under  heavy  penalties  and  for- 
feiture. 6.  Eavesdroppers,  or  such  as  listen  under  walls  or 
windows  or  the  eaves  of  a  house  to  hearken  after  discourse, 
and  thereupon  to  frame  slanderous  and  mischievous  tales, 
are  a  common  nuisance  and  presentable  at  the  court-leet,  or 
are  indictable  at  the  sessions,  and  punishable  by  fine  and 
finding  sureties  for  their  good  behavior.  7.  Lastly,  a  com- 
mon scold,  communis  rixatrix  (for  our  law-Latin  confines 
it  to  the  feminine  gender),  is  a  public  nuisance  to  her  neigh- 
borhood. For  which  offence  she  may  be  indicted,  and  if 
convicted  shall  be  sentenced  to  be  placed  in  a  certain  engine 
of  correction  called  the  trebucket,  castigatory  or  ciicJcing- 
stool,  which  in  the  Saxon  language  is  said  to  signify  the 
scolding-stool,  though  now  it  is  frequently  corrupted  into 
ducJdng-siool,  because  the  residue  of  the  judgment  is,  that 
when  she  is  so  placed  therein  she  shall  be  plunged  in  the 
water  for  her  punishment.^   [169] 

6.  Idleness  in  any  person  whatsoever  is  also  a  high  of- 
fence against  the  public  economy.^ 

7.  Under  the  head  of  public  economy  may  also  be  properly  ranked  all 
sumptuary  laws  against  luxury,  and  extravagant  expenses  in  dress,  diet, 
and  the  like,  concerning  the  general  utility  of  which  to  a  state  there  is 

7.  The  ducking-stool  is  not  the  pun-  v.  Commonwealth,  12  Serg.  &  R.  220 

ishm?nt  of  a  common  scold  in  Penn-  ( 1825 )  ;    United    States  v.   Royall,   3 

sylvania.     The  offence   now,  however,  Cranch,  C.  C.  620  (1829). 

is   indictable,  and  to  be  punished  by  8.  See  the  statutes  on  vagrancy  in 

fine,  or  by  fine  and  imprisonment,  at  the  several  states, 
the   discretion    of   the   court.      James 


C98 


Offences  against  Public  Health.       [Book  IV. 


much  controversy  among  the  political   writers.    [170]      [All  such   laws 
are  opposed  to  the  spirit  of  our  institutions.] 


8.  Next  to  that  of  luxury  naturally  follows  the  offence  of 
gaming,  which  is  generally  introduced  to  supply  or  retrieve 
the  expenses  occasioned  by  the  former.   [171]  ^ 

9.  [The  killing  of  game,  here  treated  by  our  author,  has 
been  made  the  subject  of  a  great  variety  of  statutes  in  this 
country,  which  see.]    [173] 


9.  "At  common  law,  the  playing  at 
cards,  dice,  and  otlier  games  of 
cliance,  merely  for  the  purposes  of 
recreation,  and  without  any  view  to 
inordinate  gain,  is  regarded  as  inno- 
cent. But  a  common  player  at  haz- 
ard, using  false  dice,  is  liable  to  be 
indicted  at  common  law,  and  any  per- 


sons cheating  by  means  of  cards  or 
dice  might  be  fined  or  imprlson<?d  in 
proportion  to  the  nature  of  the  of- 
fence." See  ante,  note.  This  sub- 
ject has  been  variously  legislated 
upon  in  the  United  States;  see  the 
local  statutes. 


Chap.  XIV.]  Of  Homicide.  699 


CHAPTER  XIV. 

OF    HOMICIDE. 

Homicide,  or  the  killing  of  any  human  creature,  is  of 
three  kinds,  justifiable,  excusable,  and  felonious.  [177]  The 
first  has  no  share  of  guilt  at  all;  the  second  very  little;  but 
the  third  is  the  highest  crime  against  the  law  of  nature 
that  man  is  capable  of  committing.   [178] 

I.  Justifiable  homicide  is  of  divers  kinds. 

1.  Such  a.s  is  owing  to  some  unavoidable  necessity,  with- 
out any  will,  intention,  or  desire,  and  without  any  inadver- 
tence or  negligence  in  the  party  killing,  and  therefore  with- 
out any  shadow  of  blame.  As,  for  instance,  by  virtue  of 
such  an  office  as  obliges  one,  in  the  execution  of  public  jus- 
tice, to  put  a  malefactor  to  death  who  had  forfeited  his 
life  by  the  laws  and  verdict  of  his  country.  But  the  law 
must  require  it,  otherwise  it  is  not  justifiable;  therefore, 
wantonly  to  kill  the  greatest  of  malefactors,  a  felon  or  a 
traitor,  attainted  or  outlaw^ed,  deliberately,  uncompelled, 
and  extrajudicially,  is  murder.^  And  further,  if  judgment 
of  death  be  given  by  a  judge  not  authorized  by  lawful  com- 
mission, and  execution  is  done  accordingly,  the  judge  is 
guilty  of  murder.  Also  such  judgment,  when  legal,  must 
be  executed  by  the  proper  officer  or  his  appointed  deputy; 
for  no  one  else  is  required  by  law  to  do  it,  which  requisition 
it  is  that  justifies  the  homicide.  If  another  person  doth 
it  of  his  own  head  it  is  held  to  be  murder,  even  though  it  be 
the  judge  himself.  [179]  It  must  further  be  executed 
servato  juris  or  dine  ;^  it  must  pursue  the  sentence  of  the 
court.  If  an  officer  beheads  one  who  is  adjudged  to  be 
hanged,  or  rice  versa,  it  is  murder;  for  he  is  merely  minis- 
terial, and  therefore  only  justified  when  he  acts  under  the 
authority  and  compulsion  of  the  law. 

.  1.  Clark's  Crim.  Law,  153;  Com.  v.       not  lawfully  be  killed  except  in  war. 
Bowen,  13  Mass.  356;   Evans  v.  Peo-       State  v.  Gut,  13  Minn.  341. 
pie,  49  N.  Y.  86.    Even  an  enemy  can-  2.  According    to    the    order   of    the 

court.  _ 


700  Of  Homicide.  [Book  IV. 

Again,  in  some  cases  homicide  is  justifiable  rather  by  th(» 
permission  than  by  the  absolute  command  of  the  law,  eithei- 
for  the  advancement  of  public  justice,  which  without  such 
indemnification  would  never  be  carried  on  Avith  proper  vij^or, 
or  in  such  instances  where  it  is  committed  for  the  jrreventioii 
of  some  atrocious  crime  which  cannot  otherwise  be  avoided.^ 

2.  Homicides  committed  for  the  advancement  of  public 
justice  are:  1.  Where  an  officer,  in  the  execution  of  his 
office,  either  in  a  civil  or  criminal  case,  kills  a  person  that 
assaults  and  resists  him.  2.  If  an  officer  or  any  private 
person  attempts  to  take  a  man  charged  with  felony  and  is 
resisted,  and  in  the  endeavor  to  take  him  kills  him.*  3.  In 
case  of  a  riot  or  rebellious  assembly,  the  officers  endeavoring 
to  disperse  the  mob  are  justifiable  in  killing  them,  both  at 
common  law  and  by  the  riot  act,  1  Geo.  I.  c.  5.  [180] 
4.  Where  the  prisoners  in  a  gaol  or  going  to  a  gaol  assault 
the  gaoler  or  officer,  and  lie  in  his  defence  kills  any  of  them, 
it  is  justifiable  for  the  sake  of  preventing  an  escape. 

5.  If  trespassers  in  forests,  parks,  chases,  or  warrens  will  not  sur- 
render themselves  to  the  keepers,  they  may  be  slain,  by  virtue  of  the 
statute  21  Edw.  I.  st.  2,  de  malrfacioribus  in  parcis,o  and  3  &  4  W.  &  M.  c.  10. 

But  in  all  these  cases  there  must  be  an  apparent  necessity 
on  the  officer's  side,  viz.,  that  the  party  could  not  be  ar- 
rested or  apprehended,  the  riot  could  not  be  suppressed, 
the  prisoners  could  not  be  kept  in  hold,  &c.,  unless  such 
homicide  were  committed ;  otherwise,  without  such  absolute 
necessity,  it  is  not  justifiable.^ 

6.  If  the  champions  in  a  trial  by  battle  killed  either  of  them  the  other, 
such  homicide  was  justifiable. 

In  the  next  place,  such  homicide  as  is  committed  for  the 

3.  See  Clark's  Crim.  Law,  158,  160,  be  arrested  does  not  resist  but  flees. 
164,  where  the  subject  of  justifiable  Clark's  Crim.  Law,  163;  State  v. 
and   excusable   homicide   is   well  con-      Moore,  39  Conn.  244. 

Bidcrcd  and  the  cases  cited.  5.  Concerning  criminals   in  parks. 

4.  Not  so  in  civil  cases  and  misde-         -6.  Clark's  Crim.  Law,  161. 
meanors  where  the   person  sought  to 


Chap.  XIV.]  Of  Homicide.  701 

prevention  of  any  forcible  and  atrocious  crime  is  justifiablo 
by  the  law  of  nature,  and  also  by  the  law  of  Engiand,  as  it 
stood  so  early  as  the  time  of  Bracton,  and  as  it  is  since  de- 
clared in  statute  24  Hen.  VIII.  c.  5.  If  any  person  attempts 
a  robbery  or  murder  of  another,  or  attempts  to  break  open 
a  house  in  the  night-time  (which  extends  also  to  an  attempt 
to  burn  it),  and  shall  be  killed  in  such  attempt,  the  slayer 
shall  be  acquitted  and  discharged,"  This  reaches  not  to 
any  crime  unaccompanied  with  force,  as  picking  of  pockets, 
or  to  the  breaking  open  of  any  house  in  the  day-time,  un- 
less it  carries  with  it  an  attempt  of  robbery  also.*  The 
English  law  justifies  a  woman  killing  one  who  attempts  to 
ravish  her,  and  so  too  the  husband  or  father  may  justify 
killing  a  man  who  attempts  a  rape  upon  his  wife  or  daugh- 
ter;^ but  not  if  he  takes  them  in  adultery  by  consent,  for 
the  one  is  forcible  and  felonious,  but  not  the  other. ^  [181] 
And  I  make  no  doubt  but  the  forcibly  attempting  a  crime  of 
a  still  more  detestable  nature  may  be  equally  resisted  by 
the  death  of  the  unnatural  aggressor.  For  the  one  uniform 
principle  that  runs  through  our  own  and  all  other  laws 
seems  to  be  this:  that  where  a  crime,  in  itself  capital,  is 
endeavored  to  be  committed  by  force,  it  is  lawful  to  repel 
that  force  by  the  death  of  the  party  attempting.^ 

In  these  instances  of  justifiable  homicide  it  may  be  ob- 
served that  the  slayer  is  in  no  kind  of  fault  w^hatsoever,  not 
even  in  the  minutest  degree,  and  is  therefore  to  be  totally 
acquitted  and  discharged  with  commendation  rather  than 
blame.  [181]  But  that  is  not  quite  the  case  in  excii^sahle 
homicide,  the  very  name  whereof  imports  some  fault,  some 
error  or  omission;  so  trivial,  however,  that  the  law  excuses 
it  from  the  guilt  of  felony,  though  in  strictness  it  judges  it 
deserving  of  some  little  degree  of  punishment. 

II.  Excusable  homicide  is  of  two  parts:  either  per  infor- 
tunium, by  misadventure,  or  se  dcfendendo,  upon  a  principle 
of  self-preservation.  We  w411  first  see  wherein  these  two 
species  of  homicide  are  distinct,  and  then  wherein  they 
agree. 


7.  Clark's     Crim.     Law,     164 

and 

9. 

.Id. 

cases  cited. 

1. 

Id. 

8.  Id.,  165  and  cases  cited. 

2. 

Id. 

702  Of  Homicide.  [Book  IV. 

1.  Homicide  per  infortunium,  or  misadventure,  is  where 
a  man,  doing  a  lawful  act  without  any  intention  of  hurt, 
unfortunately  kills  another;  as  where  a  man  is  at  w^ork 
with  a  hatchet,  and  the  head  thereof  flies  off  and  kills  a 
stander-by,  or  where  a  person  qualified  to  keep  a  gun  is 
shooting  at  a  mark,  and  undesignedly  kills  a  man,  for  the 
act  is  lawful  and  the  effect  is  merely  accidental.^  So  where 
a  parent  is  moderately  correcting  his  child,  a  master  his 
apprentice  or  scholar,  or  an  officer  punishing  a  criminal,  and 
happens  to  occasion  his  death,  it  is  only  misadventure,  for 
the  act  of  correction  is  lawful;  but  if  he  exceeds  the  bounds 
of  moderation,  either  in  the  manner,  the  instrument,  or  tlie 
quantity  of  punishment,  and  death  ensues,  it  is  manslaugh- 
ter at  least,  and  in  some  cases  (according  to  the  circum- 
stances) murder,  for  the  act  of  immoderate  correction  is 
unlawful.  [183]  A  tilt  or  tournament,  the  martial  diver- 
sion of  our  ancestors,  was,  however,  an  unlawful  act;  and 
so  are  boxing  and  sword-playing,  the  succeeding  amuse- 
ment of  their  posterity;  and  therefore,  if  a  knight  in  the 
former  case,  or  a  gladiator  in  the  latter,  be  killed,  such 
killing  is  felony  or  manslaughter.  But  if  the  king  com- 
mand or  permit  such  diversion,  it  is  said  to  be  only  misad- 
venture, for  then  the  act  is  lawful.  Likewise  to  whip  an- 
other's horse,  whereby  he  runs  over  a  child  and  kills  him, 
is  held  to  be  accidental  in  the  rider,  for  he  had  done  nothing 
unlawful,  but  manslaughter  in  the  person  who  whipped 
him,  for  the  act  was  a  trespass,  and  at  best  a  piece  of  idle- 
ness of  inevitably  dangerous  consequence.  And  in  general, 
if  death  ensues  in  consequence  of  an  idle,  dangerous,  and 
unlawful  sport,  as  shooting  or  casting  stones  in  a  town,  or 
the  barbarous  diversion  of  cock-throwing, —  in  these  and 
similar  cases  the  slayer  is  guilty  of  manslaughter,  and  not 
misadventure  only,  for  these  are  unlawful  acts.* 

2.  Homicide  in  self-defence,  or  sc  dcfendendo,  upon  a  sud- 
den affray,  is  also  excusable  rather  than  justifiable  by  the 
English  law.  This  right  of  natural  defence  does  not  imply 
a  right  of  attacking.   [184]     A  man  cannot,  therefore,  le- 

3.  Id.,  176.  Law,  176.   177,  where  the  subject  is 

4.  See,     generally,     Clark's     Crim.     well  considered. 


Chap.  XIV.]  Of  Homicide.  703 

gaily  exercise  this  right  of  preventive  defence  but  in  sudden 
and  violent  cases,  when  certain  and  immediate  suffering 
would  be  the  consequence  of  waiting  for  the  assistance  of 
the  law.  Wherefore,  to  excuse  homicide  by  the- plea  of 
self-defence,  it  must  appear  that  the  slayer  had  no  other 
possible  (or  at  least  probable)  means  of  escaping  from  his 
assailant.'^ 

It  is  frequently  diflScult  to  distinguish  this  species  of 
homicide  (upon  chance-medley  in  self-defence)  from  that  of 
manslaughter,  in  the  proper  legal  sense  of  the  word.  But 
the  true  criterion  between  them  seems  to  be  this :  when  both 
parties  are  actually  combating  at  the  time  when  the  mortal 
stroke  is  given,  the  slayer  is  then  guilty  of  manslaughter; 
but  if  the  slayer  has  not  begun  the  fight,  or,  having  begun, 
endeavors  to  decline  any  further  struggle,  and  afterwards, 
being  closely  pressed  by  his  antagonist,  kills  him  to  avoid 
his  own  destruction,  this  is  homicide  excusable  by  self- 
defence.  For  which  reason  the  law  requires  that  the  per- 
son who  kills  another  in  his  own  defence  should  have  re- 
treated as  far  as  he  conveniently  or  safely  can,  to  avoid  the 
violence  of  the  assault,  before  he  turns  upon  his  assailant; 
and  that  not  factitiously  or  in  order  to  watch  his  oppor- 
tunity, but  from  a  real  tenderness  of  shedding  his  brother's 
blood.  [185]  The  party  assaulted  must  flee  as  far  as  he 
conveniently  can,  either  by  reason  of  some  wall,  ditch,  or 
other  impediment,  or  as  far  as  the  fierceness  of  the  assault 
will  permit  him;  for  it  may  be  so  fierce  as  not  to  allow  him 
to  yield  a  step  without  manifest  danger  of  his  life  or  enor- 
mous bodily  harm,  and  then  in  his  defence  he  may  kill  his 
assailant  instantly.^ 

And  as  the  manner  of  the  defence,  so  is  also  the  time  to 
be  considered ;  for  if  the  person  assaulted  does  not  fall  upon 
the  aggressor  till  the  affray  is  over,  or  when  he  is  running 
away,  this  is  revenge,  and  not  defence.  Neither,  under  the 
color  of  self-defence,  will  the  law  permit  a  man  to  screen 
himself  from  the  guilt  of  deliberate  murder;  for  if  two  per- 

5.  Id.,    166-170    and    notes;    Wash.  6.  Clark's     Crim.     Law,     166-170; 

Crim.    Law     (3d    Ed.),    82;    1    Bish.      Wash.  Crim.  Law,  82-85. 
Crim.  Law    (7th  Ed.),  §   850, 


704:  Of  Homicide.  [Book  IV. 

sons,  A  and  B,  agree  to  fight  a  duel,  and  A  gives  tlie  first 
onset,  and  B  retreats  as  far  as  he  safely  can,  and  then  kills 
A,  this  is  murder,  because  of  the  previous  malice  and  con- 
certed design.  But  if  A  upon  a  sudden  quarrel  assaults  B 
first,  and  upon  B's  returning  the  assault  A  really  and  bona 
fide  flees,  and,  being  driven  to  the  wall,  turns  again  upon  B 
and  kills  him,  this  may  be  se  defendendo  according  to  some 
of  our  writers;  though  others  have  thought  this  opinion 
too  favorable,  inasmuch  as  the  necessity  to  which  he  is  at 
last  reduced  originally  arose  from  his  own  fault."^   [186] 

Under  this  excuse,  of  self-defence,  the  principal  civil  and 
natural  relations  are  comprehended;  therefore  master  and 
servant,  parent  and  child,  husband  and  wife,  killing  an 
assailant  in  the  necessary  defence  of  each  other  respectively, 
are  excused;  the  act  of  the  relation  assisting  being  con- 
strued the  same  as  the  act  of  the  party  himself.^ 

There  is  one  species  of  homicide  se  defendendo,  where 
the  party  slain  is  equally  innocent  as  he  who  occasions  his 
death,  and  yet  this  homicide  is  also  excusable  from  the  great 
universal  principle  of  self-preservation,  which  prompts 
every  man  to  save  his  own  life  perferably  to  that  of  another, 
where  one  of  them  must  inevitably  perish.  As,  among 
others,  in  that  case  mentioned  by  Lord  Bacon,^  where  two 
persons,  being  shipwrecked,  and  getting  on  the  same  plank, 
but  finding  it  not  able  to  save  them  both,  one  of  them  thrusts 
the  other  from  it,  whereby  he  is  drowned. 

III.  Felonious  homicide  is  an  act  of  a  very  different 
nature  from  the  former,  being  the  killing  of  a  human  crea- 
ture of  any  age  or  sex,  without  justification  or  excuse.  [188] 
This  may  be  done  either  by  killing  one's  self  or  another 
man. 

The  law  has  ranked  self-murder  among  the  highest 
crimes,  making  it  a  particular  species  of  felony,  —  a  felony 

7.  Id.  ^  Case,    5    Coke,    91;    1    Smith's    Lead. 

8.  Id.,   175,  185.     The  members  of      Cas.  183  and  notes. 

a  family  may  protect  and  defend  each  9.  Elem.,    c.    5.      See,    also.    Hawk, 

othrr;    so    may   a    man's   guests    and,  P.   C.   73;    United   States   v.   Holmfs, 

neighbors  aid   in   resisting  an  attack  1  Wall.  Jr.  1.     See,  however,  contra, 

on    his    house.      Clark's    Ci-im.    Law,  Queen  v.  Dudley,  14  Q.  B.  273. 
175  and  cases  cited.     See  Semayne's 


Chap.  XIV.]  Of  Homicide.  T05 

committed  on  one's  self.  [189]  And  this  admits  of  acces- 
saries before  the  fact  as  well  as  other  felonies;  for  if  one 
persuades  another  to  kill  himself,  and  he  does  so,  the  ad- 
viser is  guilty  of  murder.  A  felo  de  se/  therefore,  is  he  that 
deliberately  puts  an  end  to  his  own  existence  or  commits 
any  unlawful  malicious  act,  the  consequence  of  which  is  his 
own  death:  as  if,  attempting  to  kill  another,  he  runs  upon 
his  antagonist's  sword,  or,  shooting  at  another,  the  gun 
bursts  and  kills  himself.  The  party  must  be  of  years  of 
discretion  and  in  his  senses,  else  it  is  no  crime.  But  this 
excuse  ought  not  to  be  strained  to  that  length  to  which  our 
coroner's  juries  are  apt  to  carry  it,  viz.,  that  the  very  act 
of  suicide  is  an  evidence  of  insanity,  as  if  every  man  who 
acts  contrary  to  reason  had  no  reason  at  all.  The  law  very 
rationally  judges  that  every  melancholy  or  hypochondriac 
fit  does  not  deprive  a  man  of  the  capacity  of  discerning 
right  from  wrong,  which  is  necessary  to  form  a  legal  excuse. 
[190]  And  therefore  if  a  real  lunatic  kills  himself  in  a 
lucid  interval,  he  is  a  felo  de  se  as  much  as  another  man.^ 

But  what  punlslinient  can  human  laws  inflict  on  one  who  has  with- 
drawn himself  from  their  reach?  They  can  only  act  upon  what  he  has 
left  behind  him,  his  reputation  and  fortune, — on  the  former,  by  an  ignom- 
inious burial  in  the  highway  with  a  stake  driven  through  his  body,  on 
the  latter,  by  a  forfeiture  of  all  his  goods  and  chattels  to  the  king. 

The  other  species  of  criminal  homicide  is  that  of  killing 
another  man;  but  in  this  there  are  also  degrees  of  guilt, 
which  divide  the  offence  into  manslaufihter  and  murder. 

1.  Manslaughter  is  defined  to  be  the  unlawful  killing  of 
another  without  malice  either  express  or  implied,  which 
may  be  either  voluntarily  upon  a  sudden  heat,  or  involun- 
tarily, but  in  the  commission  of  some  unlawful  act.^  [191] 
And  hence  it  follows  that  in  manslaughter  there  can  be  no 

1.  Murder  of  one's  self.  195,    where    the    cases    are    collected. 

2.  It  has  been  held  in  this  country  There  are,  however,  so  far  as  we 
that  suicide  is  not  a  crime,  though  know,  no  forfeitures  or  penalties 
there    is    a    conflict    of    cases    on    the  therefor  in  this  country. 

subject.    Clark's  Crim.  Law   (2d  Ed.),  3.  Clark's  Crim.  Law,  197. 

.45 


70G  Of  Homicide.  '  [Book  IV. 

accessaries  before  the  fact,  because  it  must  be  done  without 
premeditation.^ 

As  to  the  first,  or  voluntary  branch,  if  upon  a  sudden 
quarrel  two  persons  fight  and  one  of  them  kills  the  other^ 
this  is  manslaughter;  and  so  it  is  if  they  upon  such  an 
occasion  go  out  and  fight  in  a  field,  for  this  is  one  continued 
act  of  passion.  So  also  if  a  man  be  greatly  provoked,  as 
by  pulling  his  nose,  or  other  great  indignity,  and  imme- 
diately kills  the  aggressor  though  this  is  not  excusable  se 
defendendo,^  since  there  is  no  absolute  necessity  for  doing 
it  to  preserve  himself,  yet  neither  is  it  murder,  for  there  is 
no  previous  malice;  but  it  is  manslaughter.  But  in  this 
and  in  every  other  case  of  homicide  upon  provocation,  if 
there  be  a  sufficient  cooling-time  for  passion  to  subside  and 
reason  to  interpose,  and  the  person  so  provoked  afterwards 
kills  the  other,  this  is  deliberate  revenge  and  not  heat  of 
blood,  and  accordingly  amounts  to  murder.'^  So  if  a  man 
takes  another  in  the  act  of  adultery  with  his  wife,  and  kills 
him  directly  upon  the  spot,  in  England  it  is  not  absolutely 
ranked  in  the  class  of  justifiable  homicide,  as  in  case  of  a 
forcible  rape,  but  it  is  manslaughter.  [192]  Manslaughter, 
therefore,  on  a  sudden  provocation  differs  from  excusable 
homicide  se  defendendo  in  this,  that  in  one  case  there  is  an 
apparent  necessity  for  self-preservation  to  kill  the  aggres- 
sor, in  the  other  no  necessity  at  all,  being  only  a  sudden  act 
of  revenge. 

The  second  branch,  or  involuntary  manslaughter,  differs 
also  from  homicide  excusable  by  misadventure  in  this,  that 
misadventure  always  happens  in  consequence  of  a  lawfuJ 
act,  but  this  species  of  manslaughter  in  consequence  of  an 
unlawful   one.    As   if   two    persons   play   at   sword    and 

5.  Id.,  211.  or  by  brutal  violence.    Id.,  81;  East's 

6.  In  self-defence.  ^  P.  C.  233-235,  252. 

Mere  words  do  not,  at  common  law,  7.  Wash.  Crim.  Law,  81.  The  kill- 
constitute  sufficient  provocation.  ing  by  the  husband  of  an  adulterer 
Wash.  Crim.  Law,  80.  See  Norman  discovered  in  the  act  with  his  wife 
V.  State.  26  Tex.  App.  221.  Nor  would  is  manslaughter.  Clark's  Crim.  Law, 
it  be  manslaughter  if  the  death  were  202;  Shafflin  v.  People,  62  N.  Y.  229; 
caused  by  the  use  of  a  deadly  weapon  Galvin    v.    State,    6    Coldw.    (Teno.) 

283. 


Chap.  XIV.]  Of  Homicide.  707 

buckler,  unless  by  the  king's  command,  and  one  of  them 
kills  the  other,  this  is  manslaughter,  because  the  original 
act  was  unlawful ;  but  it  is  not  murder,  for  the  one  had  no 
intent  to  do  the  other  any  personal  mischief.  So  where  a 
person  does  an  act  lawful  in  itself,  but  in  an  unlawful 
manner,  and  without  due  caution  and  circumspection,  as 
when  a  workman  flings  down  a  stone  or  piece  of  timber  into 
the  street  and  kills  a  man,  this  may  be  either  misadventure, 
manslaughter,  or  murder,  according  to  the  circumstances 
under  which  the  original  act  was  done.  If  it  were  in  a 
country  village  where  few  passengers  are,  and  he  calls  out 
to  all  people  to  have  a  care,  it  is  misadventure  only;  but  if 
it  were  in  London,  or  other  populous  town  where  people 
are  continually  passing,  it  is  manslaughter,  though  he  gives 
loud  warning,  and  murder  if  he  knows  of  their  passing  and 
gives  no  warning  at  all,  for  then  it  is  malice  against  all 
mankind.  And  in  general,  when  an  involuntary  killing 
happens  in  consequence  of  an  unlawful  act,  it  will  be  either 
murder  or  manslaughter,  according  to  the  nature  of  the  act 
which  occasioned  it.  If  it  be  in  prosecution  of  a  felonious 
intent,  or  in  its  consequences  naturally  tended  to  bloodshed, 
it  will  be  murder;  but  if  no  more  was  intended  than  a  mere 
civil  trespass,  it  will  only  amount  to  manslaughter.^  [193] 

Next,  as  to  the  punishment  of  this  degree  of  homicide,  the 
crime  of  manslaughter  amounts  to  felony,  but  within  the 
benefit  of  clergy;  and  the  offender  shall  be  burnt  in  the 
hand  and  forfeit  all  his  goods  and  chattels. 

2.  Murder  is  thus  defined  by  Sir  Edward  Coke:  **  When 
a  person  of  sound  memory  and  discretion  unlawfully  killeth 
any  reasonable  creature  in  being  and  under  the  king's  peace 
with  malice  aforethought,  either  express  or  implied."  [195] 

First,  it  must  be  committed  by  a  person  of  sound  memory 
and  discretion,  for  lunatics  or  infants,  as  was  formerly 
observed,  are  incapable  of  committing  any  crime,  unless  in 
such  cases  where  they  show  a  consciousness  of  doing  wrong, 
and  of  course  a  discretion  or  discernment  between  good  and 
evil.» 

8.  Clark's     Crim.     Law,     204     and  9.  See  anie,  note, 

cases  cited. 


708    ■  Of  Homicide.  [Book  IV. 

Next,  it  liappens  when  a  person  of  such  sound  discretion 
unlawfully  killeth.  The  unlawfulness  arises  from  the  kill- 
ing without  warrant  or  excuse,  and  there  must  also  be  an 
actual  killing  to  constitute  murder;  for  a  bare  assault  with 
intent  to  kill  is  only  a  great^ misdemeanor,  though  formerly 
it  was  held  to  be  murder.  [196]  The  killing  may  be  by 
poisoning,  striking,  starving,  drowning,  and  a  thousand 
other  forms  of  death  by  which  human  nature  may  be  over- 
come. And  if  a  person  be  indicted  for  one  species  of  killing, 
as  by  poisoning,  he  cannot  be  convicted  by  evidence  of  a 
totally  different  species  of  death,  as  by  slwoting  with  a  pistol, 
or  starving.  But  where  they  only  differ  in  circumstances, 
as  if  a  wound  be  alleged  to  be  given  with  a  sword,  and  it 
proves  to  have  arisen  from  a  staff,  an  axe,  or  a  hatchet,  this 
difference  is  immaterial.^  There  was  also  by  the  ancient 
common  law  one  species  of  killing  held  to  be  murder,  which 
may  be  dubious  at  this  day,  as  there  hath  not  been  an  in- 
stance wherein  it  has  been  held  to  be  murder  for  many  ages 
past,  —  I  mean  by  bearing  false  witness  against  another 
with  an  express  premeditated  design  to  take  away  his  life 
so  as  the  innocent  person  be  condemned  and  executed.^ 
There  is  no  doubt  but  this  is  equally  murdef  in  foro  con- 
scientiac^  as  killing  with  a  sword,  though  the  modern  law 
(to  avoid  the  danger  of  deterring  witnesses  from  giving 
evidence  upon  capital  prosecutions,  if  it  must  be  at  the  peril 
of  their  own  lives)  has  not  yet  punished  it  as  such.  [197] 
If  a  man,  however,  does  such  an  act  of  which  the  probable 
consequence  may  be,  and  eventually  is,  death,  such  killing 
may  be  murder,  although  no  stroke  be  struck  by  himself, 
and  no  killing  be  primarily  intended,  as  was  the  case  of 
the  unnatural  son  who  exposed  his  sick  father  to  the  air 
against  his  will,  by  reason  whereof  he  died,  of  the  harlot 
who  laid  her  child  under  leaves  in  an  orchard  where  a  kite 
struck  it  and  killed  it,  and  of  the  parish  officers  who  shifted 

1.  See  Wliart.  Crim.  Law.  §  1059;  ted  by  perjury  and  subornation  of 
Archibald's  Crim.  Plead.    (10th  Ed.),      perjury. 

406,  407.  3.  In  the  forum  of  conscience. 

2.  Under  the  Illinois  statute.  Crim. 
Code,  §  226,  murder  may  be  commit- 


Chap.  XIV.]  Of  Homicide.  709 

a  child  from  parish  to  parish  till  it  died  for  want  of  care 
and  sustenance.  So  too  if  a  man  hath  a  beast  that  is  used 
to  do  mischief,  and  he  knowing  it  suffers  it  to  go  abroad 
and  it  kills  a  man,  even  this  is  manslaughter  in  the  owner; 
but  if  he  had  purposely  turned  it  loose ,  though  barely  to 
frighten  people  and  make  what  it  called  sport,  it  is  with  us 
(as  in  the  Jewish  law)  as  much  murder  as  if  he  had  incited 
a  bear  or  dog  to  worry  them.  If  a  physician  or  surgeon 
gives  his  patient  a  potion  or  plaster  to  cure  him,  which, 
contrary  to  expectation,  kills  him,  this  is  neither  murder 
nor  manslaughter,  but  misadventure,  and  he  shall  not  be 
punished  criminally,  however  liable  he  might  formerly  have 
been  to  a  civil  action  for  neglect  or  ignorance.  But  it  hath 
been  holden  that  if  it  be  not  a  regular  physician  or  surgeon 
who  administers  the  medicine  or  performs  the  operation,  it 
is  manslaughter  at  the  least.  Yet  Sir  Matthew  Hale  very 
justly  questions  the  law"  of  this  determination.*  In  order 
also  to  make  the  killing  murder,  it  is  requisite  that  the 
party  die  within  a  year  and  a  day  after  the  stroke  received 
or  cause  of  death  administered,  in  the  computation  of  which 
the  whole  day  upon  which  the  hurt  was  done  shall  be  reck- 
oned the  first.^ 

Further,  the  person  killed  must  be  "  a  reasonable  crea- 
ture in  being  and  under  the  king's  peace  "  at  the  time  of 
the  killing.  Therefore  to  kill  an  alien,  a  Jew,  or  an  outlaw, 
w^ho  are  all  under  the  king's  peace  and  protection,  is  as 
much  murder  as  to  kill  the  most  regular-born  Englishman, 
except  he  be  an  alien  enemy  in  time  of  war.  [198]  To  kill 
a  child  in  its  mother 's  womb  is  now  no  murder  But  a  great, 
misprision;  but  if  the  child  be  born  alive,^  and  dieth  by 

4.  See  this  subject  fully  considered  is  the  result  of  reckless  or  foolhardy 

and   the  cases  cited   in   Ewell's  Med.  presumption  judged  by  the  standard 

Juris.    (2d    Ed.),   296-302.      In    Com.  of  what  would  be  reckless  in  a  man 

V.  Pierce,   138  Mass.  163,  Holmes,  J.,  of   ordinary   prudence   under   the  cir- 

delivering   the   unanimous  opinion  of  cumstance. 

the  court,  it  was  held  that  to  consti-  5.  State  v.  Mayfield,   66   Mb.    125; 

tute  manslaughter  when  there  is   no  People  v.  Wallace,  9  Cal.  30;  Com.  v. 

evil   intent,   it   is  not  necessary  that  Parker,  2  Pick.  558. 
the   killing   should   be   the    result   of  6.  In    order    to    constitute    murder 

an  unlawful  act;   it  is  sufficient  if  it  the  child  must  have  been  completely 


710  Of  Homicide.  _      [Book  IV. 

reason  of  the  potion  or  bruises  it  received  in  the  womb,  it 
seems  by  the  better  opinion  to  be  murder  in  such  as  admin- 
istered or  gave  them. 

Lastly,  the  killing  must  be  committed  with  malice  afore- 
thought, to  make  it  the  crime  of  murder.  This  is  the  grand 
criterion  which  now  distinguislies  murder  from  other  kill- 
ing. And  this  malice  prepense,  malifia  praecogitata,  is  not 
so  properly  spite  or  malevolence  to  the  deceased  in  particular, 
as  any  evil  design  in  general,  —  the  dictate  of  a  wicked,  de- 
praved, and  malignant  heart;  un  disposition  a  faire  un  male 
chose.^  And  it  may  be  either  express  or  implied  in  law. 
Express  malice  is  when  one,  with  a  sedate,  deliberate  mind 
and  formed  design  doth  kill  another;  which  formed  design 
is  evidenced  by  external  circumstances  discovering  that  in- 
ward intention,  as  laying  in  wait,  antecedent  menaces, 
former  grudges,  and  concerted  schemes  to  do  him  some 
bodily  harm.  [199]  This  takes  in  the  case  of  deliberate 
duelling,^  where  both  parties  meet  avowedly  with  an  intent 
to  murder;  and  therefore  the  law  has  justly  fixed  the  crime 
and  punishment  of  murder  on  them  and  on  their  seconds 
also.  Also,  if  even  upon  a  sudden  provocation  one  beats 
another  in  a  cruel  and  unusual  manner  so  that  he  dies, 
though  he  did  not  intend  his  death,  yet  he  is  guilty  of  mur- 
der by  express  malice;  that  is,  by  an  express  evil  design, 
the  genuine  sense  of  malitia.  As  when  a  park-keeper  tied 
a  boy  that  was  stealing  wood  to  a  horse 's  tail,  and  dragged 
him  along  the  park;  when  a  master  corrected  his  servant 
with  an  iron  bar;  and  a  schoolmaster  stamped  on  his 
scholar's  belly;  so  that  each  of  the  sufferers  died,  these  were 
justly  held  to  be  murders,  because,  the  correction  being 
excessive,  and  such  as  could  not  proceed  but  from  a  bad 

born.     It   is  not   necessary,   however,  of    legislation    probably    in    all    the 

that  the  umbilical  cord   should  have  states,   as   has   also   that  of   criminal 

been  divided.     Ewell's  Med.  Jur.    (2d  abortion,  etc.     Consult  the  local  stat- 

Ed.),    120.      See,    however,    State    v.  utes. 

Winthrop,    2   Am.   Crim.    Cases,   274,  7.  A  disposition  to  do  a  bad  thing. 

B.  c.  43  Iowa,  519;  Sheppard  v.  State,  8.  So  by   statute   in   Illinois,  Iowa, 

17   Tex.   App.   74.      The   crime  of   in-  ilassachusetts,   Michigan,   New   York, 

fanticide   has  been   made  the  subject  and  possibly  other  states. 


Chap.  XIV.]  Of  Homicide.  711 

heart,  it  was  equivalent  to  a  deliberate  act  of  slaughter. 
Neither  shall  he  be  guilty  of  a  less  crime  who  kills  another 
in  consequence  of  such  a  wilful  act  as  shows  him  to  be  an 
enemy  to  all  mankind  in  general:  as  going  deliberately, 
and  with  an  intent  to  do  mischief,  upon  a  horse  used  to 
strike,  or  coolly  discharging  a  gun  among -a  multitude  of 
people.  [200]  So  if  a  man  resolves  to  kill  the  next  man  he 
meets,  and  does  kill  him,  it  is  murder,  although  he  knew 
him  not;  for  this  is  universal  malice.  And  if  two  or  more 
€ome  together  to  do  an  unlawful  act  against  the  king's 
peace,  of  which  the  probable  consequence  might  be  blood- 
shed: as  to  beat  a  man,  to  commit  a  riot,  or  to  rob  a  park, 
and  one  of  them  kills  a  man,  —  it  is  murder  in  them  all, 
because  of  the  unlawful  act,  the  malitia  praecogitata^  or 
evil  intended  beforehand. 

Also,  in  many  cases  where  no  malice  is  expressed  the  law 
will  imply  it:  as  where  a  man  wilfully  poisons  another;  in 
such  a  deliberate  act  the  law  presumes  malice,  though  no 
particular  enmity  can  be  proved.  And  if  a  man  kills 
another  suddenly,  without  any,  or  without  a  considerable 
provocation,  the  law  implies  malice;  for  no  person,  unless 
of  an  abandoned  heart,  would  be  guilty  of  such  an  act  upon 
a  slight  or  no  apparent  cause.  No  affront,  by  words  or 
gestures  only,  is  a  sufficient  provocation  so  as  to  excuse  or 
extenuate  such  acts  of  violence  as  manifestly  endanger  the 
life  of  another.  But  if  the  person  so  provoked  had  un- 
fortunately killed  the  other  by  beating  him  in  such  a  man- 
ner as  showed  only  an  intent  to  chastise  and  not  to  kill  him, 
the  law  so  far  considers  the  provocation  of  contumelious 
behavior  as  to  adjudge  it  only  manslaughter,  and  not  mur- 
der. In  like  manner,  if  one  kills  an  officer  of  justice  either 
civil  or  criminal,  in  the  execution  of  his  duty,  or  any  of  his 
^xissistants  endeavoring  to  conserve  the  peace,  or  any  private 
person  endeavoring  to  suppress  an  affray  or  apprehend  a 
felon,  knowing  his  authority  or  the  intention  with  which  he 
interposes,  the  law  will  imply  malice,  and  the  killer  shall 

9.  Malice  aforethought. 


Tl2  Of  Homicide.  [Book  IV. 

be  guilty  of  murder.  And  if  one  intends  to  do  another 
felony,  and  undesignedly  kills  a  man,  this  is  also  murder. 
[201]  Thus  if  one  shoots  at  A  and  misses  him,  but  kills  B, 
this  is  murder,  because  of  the  previous  felonious  intent, 
which  the  law  transfers  from  one  to  the  other.  The  same 
is  the  case  where  one  lays  poison  for  A,  and  B,  against 
whom  the  prisoner  had  no  malicious  intent,  takes  it,  and  it 
kills  him:  this  is  likewise  murder.  So  also  if  one  gives  a 
woman  with  child  a  medicine  to  procure  abortion,  and  it 
operates  so  violently  as  to  kill  the  woman,  this  is  murder 
in  the  person  who  gave  it.  We  may  take  it  for  a  general 
rule  that  all  homicide  is  malicious,  and  of  course  amounts 
to  murder,  unless  where  justified  by  the  command  or  per- 
mission of  the  law;  excused  on  the  account  of  accident  or 
self-preservation;  or  alleviated  into  manslaughter  by  being 
either  the  involuntary  consequence  of  some  act  not  strictly 
lawful,  or  (if  voluntary)  occasioned  by  some  sudden  and 
sufficiently  violent  provocation.  And  all  these  circum- 
stances of  justification,  excuse,  or  alleviation,  it  is  incumb- 
ent upon  the  prisoner  to  make  out  to  the  satisfaction  of  the 
court  and  jury,  the  latter  of  whom  are  to  decide  whether  the 
circumstances  alleged  are  proved  to  have  actually  existed,, 
the  former,  how  far  they  extend  to  take  away  or  mitigate 
guilt;  for  all  homicide  is  presumed  to  be  malicious  until  the 
contrary  appeareth  upon  evidence.^ 

The  pnnishnjent  of  murder,  and  that  of  manslaughter^  was  formerly 
one  and  the  same,  both  having  the  benefit  of  clergy;   so  that  none  but 

1.  See    an    excellent    discussion    of  2.  Regulated  entirely  by  statute, 
the  term  "  malice "  in  Clark's  Crim.  In   some   of    the   states    murder    i» 
Law    (2d    Ed.),    187-196,    where    the  divided  into  degrees  according  to  its 
oases  are  collected  and  considered.    It  enormity,   though   there   are   none   at 
is  defined  by  Mr.  Washburn  as  "  the  the  common    law.     See  Wash.   Crim. 
wilful    doing    of    an    unlawful    act."  Law    (3d  Ed.),  74.     In  others   it  re- 
Wash.  Crim.  Law  (3d  Ed.),  24,  citing  mains    substantially    as    at    commoiv 
Com.   T.   Bormer,   9   Met.    410.      See,  law,  many  of  the  statutes  in  defining 
also,  1  Bish.  Crim.  Law,  §  429;  Com.  it  adopting  in  substance  the  common 
V.    Godwin,    122    Mass.    19:    Spies   v.  law  definition.    Consult  the  local  stat- 
People,   122   111.   1,   174.     The  discus-  utes. 
BJon  of  our  author  in  the  text  seems 
beyond  criticism. 


CiiAr.  XIV.]  Of  Homicide.  T13 

unlearned  persons,  who  least  knew  the  guilt  of  it,  were  put  to  death 
for  this  enormous  crime.  But  now  by  several  statutes  the  benefit  of 
clergy  is  taken  away  from  murderers  through  malice  prepense,  their  abet- 
tors, procurers,  and  counselors. 

Petit  treason,  according  to  the  statute  25  Edw.  III.  c.  2,  may  happen 
three  ways:  by  a  servant  killing  his  master,  a  wife  her  husband,  or  an 
ecclesiastical  person  (either  secular  or  regular)  his  superior,  to  whom 
he  owes  faith  and  obedience.  [203]     [Abolished  by  statute.] 


714  Offences  against  [Book  IV. 

CHAPTER  XV. 

OF   OFFENCES    AGAINST   THE   PERSONS   OF   INDIVIDUALS. 

Of  these  offences  some  are  felonies,  and  in  their  nature 
capital;  others  are  simple  misdemeanors,  and  punishable 
with  a  lighter  animadversion.  [205]  Of  the  felonies,  the 
first  is  that  of  mayhem. 

I.  Mayhem,  mayhemium,  is  properly  defined  to  be  the 
violently  depriving  another  of  the  use  of  such  of  his  mem- 
bers as  may  render  him  the  less  able  in  fighting,  either  to 
defend  himself,  or  to  annoy  his  adversary.  And  therefore 
the  cutting  off  or  disabling  or  weakening  a  man's  hand  or 
finger,  or  striking  out  his  eye  or  foretooth,  or  depriving 
him  of  those  parts,  the  loss  of  which  in  all  animals  abates 
their  courage,  are  held  to  be  mayheins.  But  the  cutting  off 
his  ear  or  nose,  or  the  like,  are  not  held  to  be  mayhems  at 
common  law,  because  they  do  not  weaken,  but  only  disfigure 
him.^  [206] 

By  the  statute  of  22  &  23  Car.  II.  c.  1,  called  the  Coventry 
act,  being  occasioned  by  an  assault  on  Sir  John  Coventry 
in  the  street,  and  slitting  his  nose  in  revenge  (as  was  sup- 
posed) for  some  obnoxious  words  utted  by  him  in  parlia- 
ment, it  is  enacted  that  if  any  person  shall  of  malice  afore- 
thought and  by  lying  in  wait  unlawfully  cut  out  or  disable 
the  tongue,  put  out  an  eye,  slit  the  nose,  cut  off  a  nose  or 
lip,  or  cut  off  or  disable  any  limb  or  member  of  any  other 
person,  icith  intent  to  maim  or  disfigure  him,  such  person, 
his  counselors,  aiders,  and  abettors,  shall  be  guilty  of  felony 
without  benefit  of  clergy.  [207] 

II.  The  second  offence,  more  immediately  affecting  the  personal  se  • 
curity  of  individuals,  relates  to  the  female  part  of  his  majesty's  subjects, 
being  that  of  their  forcible  abduction  and  marriage,  which  is  vulgarly 
called  stealing  an  heiress.  [208]     [A  statutory  felony,  3  Hen.  VII.  c.  2.] 

III.  A  third  offence  against  the  female  part  also  of  his 
majesty's  subjects,  but  attended  with  greater  aggravation 

1.  Clark's  Crim.  Law,  213;   1  East.       injuries   merely    disfiguring.      Clark's 
P.  C.  393.     By  statute  it  has  in  most      Crim.  Law,  213. 
of  the  states  been  extended  to  include 


Chap.  XV.]  the  Persons  of  Individuals.       ^  715 

than  that  of  forcible  marriage,  is  the  crime  of  rape,  raptus 
mnUerum,  or  the  carnal  knowledge  of  a  woman  forcibly  and 
agpainst  her  will.^  [210] 

At  present  there  is  no  limitation  fixed  [as  to  the  time 
when  complaint  must  be  made],  for  as  it  is  usually  now 
punished  by  indictment  at  the  suit  of  the  king,  the  maxim 
of  law  takes  place  that  nullum  tempus  occurrlt  regi;^  but  the 
jury  will  rarely  give  credit  to  a  stale  complaint.  [211] 

By  statute  18  Eliz.  c.  7,  forcible  rape  is  made  felony 
without  benefit  of  clergy,  as  is  also  the  abominable  wicked- 
ness of  carnally  knowing  and  abusing  any  woman  child 
under  the  age  of  ten  years,  in  which  case  the  consent  or 
non-consent  is  immaterial,  as  by  reason  of  her  tender  years 
she  is  incapable  of  judgment  and  discretion.^  [212] 

A  male  infant  under  the  age  of  fourteen  years  is  presumed 
by  law  incapable  to  commit  a  rape,  and  therefore  it  seems 
cannot  be  found  guilty  of  it.* 

But  the  law  of  England  holds  it  to  be  felony  to  force  even 
a  concubine  or  harlot,  because  the  woman  may  have  for- 
saken that  unlawful  course  of  life.^  [213] 

With  regard  to  the  competency  and  credibility  of  wit- 
nesses, — 

First,  the  party  ravished  may  give  evidence  upon  oath, 
and  is  in  law  a  competent  witness ;  but  the  credibility  of  her 
testimony,  and  how  far  forth  she  is  to  be  believed,  must  be 
left  to  the  jury  upon  the  circumstances  of  fact  that  concur 
in  that  testimony.     For  instance,  if  the  witness  be  of  good 

1.  2  Bish.  Crim.  Law  (7th  Ed.),  a  husband  in  person  upon  his  wife. 
§  1113;  Wash.  Crim.  Law  (3d  Ed.),  McClain's  Crim.  Law,  §  449;  though 
93.  he  may   be  guilty  of   rape   upon   her 

2.  Xo  time  bars  the  king.  by  aiding  another  in  the  commission 

3.  Made  the  subject  of  statutes  of  the  act.  People  v.  Chapman,  62 
probably  in 'most  of  the  states.  Mich.  280;  State  v.  Dowell,  106  N.  C. 

4.  Some  American  cases  hold  that  722.  See,  generally,  on  this  subject, 
a  boy  under  fourteen  years  of  age  is  Clark's  Crim.  Law  (2d  Ed.),  215- 
only  prima  facie  incapable.     See  the  224. 

cases  collected  in  2  Bish.  Crim.  Law  5.  Clark's  Crim.  Law,  222;   Carney 

(7th    Ed.),    §    1117    and    notes;    Mc-      v.    State,    118    Ind.    525;    Peopl€'    v. 
Clain  Crim.  Law,  §  449;  Ewell's  Med.      Crego,  70  Mich,  319. 
Jur.    (2d  Ed.),  142. 

This  crime  cannot  be  committed  by 


Tl6  Offences  against        "  [Book  IV. 

fame;  if  she  presently  discovered  the  offence  and  made 
search  for  the  offender ;  if  the  party  accused  fled  for  it,  — 
these  and  the  like  are  concurring  circumstances  which  give 
greater  probability  to  her  evidence.  But,  on  the  other  side, 
if  she  be  of  evil  fanie^  and  stand  unsupported  by  others;  if 
she  concealed  the  injury  for  any  considerable  time  after 
she  had  opportunity  to  complain;  if  the  place  where  the 
fact  was  alleged  to  be  committed  was  where  it  was  possible 
she  might  have  been  heard,  and  she  made  no  outcry, — 
these  and  the  like  circumstances  carry  a  strong  but  not 
conclusive  presumption  that  her  testimony  is  false  or 
feigned.  [214] 

Moreover,  if  the  rape  be  charged  to  be  committed  on  an 
infant  under  twelve  years  of  age,  she  may  still  lie  a  com- 
petent witness,  if  she  hath  sense  and  understanding  to  know 
the  nature  and  obligations  of  an  oath,  or  even  to  be  sensible 
of  the  wickedness  of  telling  a  deliberate  lie.  But  it  is  now 
settled  [Brazier's  case  before  the  twelve  judges,  P.  19  G. 
III.]  that  no  hearsay  evidence  can  be  given  of  the  declara- 
tion of  a  child  who  hath  not  capacity  to  be  sworn,  nor  can 
such  child  be  examined  in  court  without  oath,  and  tha,t 
there  is  no  determinate  age  at  which  the  oath  of  a  child 
ought  either  to  be  admitted  or  rejected. 

IV.  What  has  been  here  observed,  especially  with  regard 
to  the  manner  of  proof,  which  ought  to  be  more  clear  in 
proportion  as  the  crime  is  the  more  detestable,  may  be  ap- 
plied to  another  offence  of  a  still  deeper  malignity,  the 
infamous  crime  against  nature,  committed  either  with  man 
or  beast.^  [215],  —  a  crime  which  ought  to  be  strictly  and 
impartially  proved,  and  then  as  strictly  and  impartially 
punished.  But  it  is  an  offence  of  so  dark  a  nature,  so  easily 
charged,  and  the  negative  so  difficult  to  be  proved,  that  the 
accusation  should  be  clearly  made  out;  for,  if  false,  it  de- 
serves a  punishment  inferior  only  to  that  of  the  crime  itself. 

These  are  all  the  felonious  offences  more  immediately 
against  the  personal  security  of  the  subject.   [216]      The 

6.  Clark's  Crim.  Law,  222  and  cases  and  considered  in  Clark's  Crim.  Law 
cited.  (2d   Ed.),    365-7.      See,   also,   EwoU's 

7.  See  Sodomy,  Bestiality  and  Bug-  Med.  Jur.    (2d  Ed.),  159-161. 
gery   defined    and   the   cases   collected 


Chap.  XV.]  the  Persons  of  Individuals.  Tl7 

inferior  offences  or  misdemeanors  that  fall  under  this  head 
are  assaults,  batteries,  wounding,  false  imprisonment,  and 
kidnapping. 

V.  VI.  VII.  With  regard  to  the  nature  of  the  three  first 
of  these  offences  in  general,  I  have  nothing  further  to  add 
to  what  has  already  been  observed  in  the  preceding  book 
of  these  Commentaries,  when  we  considered  them  as  private 
wrongs  or  civil  injuries.^  But,  taken  in  a  public  light  as  a 
breach  of  the  king's  peace,  they  are  also  indictable  and 
punishable  with  fines  and  imprisonment;  or  with  other  igno- 
minious corporal  penalties  where  they  are  committed  with 
any  very  atrocious  design  [217],  as  in  case  of  an  assault 
with  an  intent  to  murder,^  or  with  an  intent  to  commit 
either  of  the  crimes  last  spoken  of. 

VIII.  The  two  remaining  crimes  and  offences  against  the 
persons  of  his  majesty 's  subjects,  are  infringements  of  their 
natural  liberty,  concerning  the  first  of  which,  false  im- 
prisonment, its  nature  and  incidents,  I  must  content  myself 
with  referring  the  student  to  what  was  observed  in  the 
preceding  book,  when  we  considered  it  as  a  mere  civil  in- 
jury.^ [218]  [Some  aggravated  species  of  false  imprison- 
ment, such  as  sending  a  subject  a  prisoner  into  parts  beyond 
the  seas,  are  made  the  object  of  special  statutes.]  Inferior 
degrees  of  the  offence  of  false  imprisonment  are  punishable 
by  indictment  (like  assaults  and  batteries),  and  the  delin- 
quent may  be  fined  and  imprisoned.  And  indeed  there  can 
be  no  doubt  but  that  all  kinds  of  crimes  of  a  public  nature, 
all  disturbances  of  the  peace,  all  oppressions,  and  other 
misdemeanors  whatsoever  of  a  notoriously  evil  example, 
may  be  indicted  at  the  suit  of  the  king. 

IX.  The  other  remaining  offence,  that  of  kidnapping, 
being  the  forcible  abduction  or  stealing  away  of  a  man, 
woman,  or  child  from  their  own  countrj^,  and  sending  them 
into  another,^  by  the  common  law  of  England  was  punished 
with  fine,  imprisonment,  and  pillory  [219]  [It  is  also  the 
subject  of  punishment  by  statute.] 

8.  See  ante.  1.  See  ante. 

9.  This  has  in  this  country  often  2.  Clark's  Crim.  Law,  248.  In 
bren  made  a  substantive  offence.  See  many  of  the  states  it  is  made  a  stat- 
the  statutes.  utory  crime.     Id.,  249. 


Tl8  Offences  against  [Book  IV. 

CHAPTER  XVI. 

OF  OFFENCES  AGAINST  THE  HABITATIONS  OF  INDIVIDUALS. 

The  only  two  offences  that  more  immediately  affect  the 
habitations  of  individuals  or  private  subjects  are  those  of 
arson  and  burg] an/.  [220] 

I.  Arson,  ab  ardendo,^  is  the  malicious  and  wilful  burn- 
ing the  house  or  outhouse  of  another  man.  This  is  an 
offence  of  very  great  malignity. 

We  will  inquire,  first,  what  is  such  a  house  as  may  be  the 
subject  of  this  offence;  next,  wherein  the  offence  itself  con- 
sists, or  what  amounts  to  a  burning  of  such  house;  and 
lastly,  how  the  offence  is  punished.  [221] 

1.  Not  only  the  bare  dwelling-house,  but  all  out-houses 
that  are  parcel  thereof,  though  not  contiguous  thereto  nor 
under  the  same  roof,  as  barns  and  stables,  may  be  the  sub- 
ject of  arson.  ^*  And  this  by  the  common  law,  which  also 
accounted  it  felony  to  burn  a  single  barn  in  the  field,  if 
filled  with  hay  or  corn,  though  not  parcel  of  the  dwelling- 
house.  The  burning  of  a  stack  of  corn  was  anciently  like- 
wise accounted  arson.  The  offence  of  arson  (strictly  so 
called)  may  be  committed  by  wilfully  setting  fire  to  one's 
own  house,  provided  one 's  neighbor 's  house  is  thereby  also 
burned ;  but  if  no  mischief  is  done  but  to  one 's  own,  it  does 
not  amount  to  felony,^  though  the  fire  was  kindled  with 
intent  to  burn  another's.  For  by  the  common  law  no  in- 
tention to  commit  a  felony  amounts  to  the  same  crime, 
though  it  does  in  some  cases,  by  particular  statutes.  How- 
ever, such  wilful  firing  one 's  own  house,  in  a  town,  is  a  high 
misdemeanor,  and  punishable  by  fine,  imprisonment,  pillory, 
and  perpetual  sureties  for  the  good  behavior.  And  if  a 
landlord  or  reversioner  sets  fire  to  his  own  house,  of  which 

1.  From  burning.  ing   one's   own   house   with    intent    to 
la.  That  is  they  must  be  within  the      defraud  the  insurer  thereof  is  made 

curtilage.       See,     generally,     Clark's      a   felony  by   statute   in   some  states. 
Crim.  Law,  256,  257.  See  Wash.  Crim.  Law    (3d  Ed.),  37 

2.  Clark's  Crim.  Law,  257.     Burn-      and  note. 


Chap.  XVI.]     the  Habitations  of  Individuals;  719 

another  is  in  jwssession  under  a  lease  from  himself,  or  from 
those  whose  estate  he  hath,  it  shall  be  accounted  arson;  for 
during  the  lease  the  house  is  the  property  of  the  tenant. 

2.  As  to  what  shall  be  said  to  be  a  burning,  so  as  to 
amount  to  arson,  a  bare  intent  or  attempt  to  do  it  by  actu- 
ally setting  fire  to  a  house,  unless  it  absolutely  burns,  does 
not  fall  within  the  description  of  incendit  et  comhussit? 
which  were  words  necessary,  in  the  days  of  law-Latin,  to 
all  indictments  •  of  this  sort.  [222]  But  the  burning  and 
consuming  of  any  part  is  sufficient,  though  the  fire  be  after- 
wards extinguished.*  Also  it  must  be  a  malicious  burning; 
otherwise  it  is  only  a  trespass,  and  therefore  no  negligence 
or  mischance  amounts  to  it.  For  which  reason,  though  an 
unqualified  person,  by  shooting  with  a  gun,  happens  to  set 
fire  to  the  thatch  of  a  house,  this  Sir  Matthew  Hale  deter- 
mines not  to  be  felony,  contrary  to  the  opinion  of  former 
writers. 

3.  The  statutes  8  Hen.  VI.  c.  6,  made  the  wilful  burning  of  houses, 
under  some  special  circumstances  therein  mentioned,  amount  to  the  crime 
of  high  treason;  but  it  w&s  again  reduced  to  felony  by  the  general  acts 
of  Edward  VI.  and  Queen  Mary;  and  now  the  punishment  of  all  capital 
felonies  is  uniform,  namely,  by  hanging. 

II.  The  definition  of  a  burglar,  as  given  us  by  Sir  Edward 
Coke,  is  "he  that  by  night  breaketh  and  entereth  into  a 
mansion-house  [of  another],  with  intent  to  commit  a 
felony."^  [224]  In  this  definition  there  are  four  things  to 
be  considered :  the  time,  the  place,  the  manner,  and  the  intent. 

1.  The  time  must  be  by  night,  and  not  by  day,  for  in  the 
daytime  there  is  no  burglary.  We  have  seen,  in  the  case  of 
justifiable  homicide,  how  much  more  heinous  all  laws  made 
an  attack  by  night  rather  than  by  day,  allowing  the  party 
attacked  by  night  to  kill  the  assailant  with  impunity.  As 
to  what  is  reckoned  night  and  what  day  for  this  purpose, 

3.  He  has  burned  and  consumed.  346;   Com.  v.  Tucker,  110  Mass.  403; 

4.  Mere  charring  will  suffice:  but  Macy  v.  State,  24  Ark.  44;  State  ▼. 
not  a  mere  scorching  and  blackening      Spiegel,  111  Iowa,  701. 

by    the   smoke.      Clark's    Crim.    Law,  5.  3  Inst,  ch,  3. 

255;   Woolsey  v. ~  State,  30  Tex.   App.  •  •   •" 


720  Offexces  against  [Book  IV. 

the  better  opinion  seems  to  be  that  if  tliere  be  daylight  or 
crepiisculum  enough,  begun  or  left,  to  discern  a  man's  face 
withal,  it  is  no  burglary.  But  this  does  not  extend  to  moon- 
light; for  then  many  midnight  burglaries  would  go  un- 
punished.^ 

2.  As  to  the  place.  It  must  be,  according  to  Sir  Edward 
Coke's  definition,  in  a  mansion-house:  and  therefore  to  ac- 
count for  the  reason  why  breaking  open  a  church  is  burg- 
lary, as  it  undoubtedly  is,  he  quaintly  observes  that  it  is 
domus  mansionalis  DeU  But  it  does  not  seem  absolutely 
necessary  that  it  should  in  all  cases  be  a  mansion-house;  for 
it  may  also  be  committed  by  breaking  the  gates  or  walls  of  a 
town  in  the  night.  And  we  may  safely  conclude  that  the 
requisite  of  its  being  domus  mansionalis^  is  only  in  the  burg- 
lary of  a  private  house,  which  is  the  most  frequent,  and  in 
which  it  is  indispensably  necessary  to  form  its  guilt  that 
it  must  be  in  a  mansion  or  dwelling-house.  [225]  For  no 
distant  barn,  warehouse,  or  the  like  is  under  the  same  privi- 
leges, nor  looked  upon  as  a  man's  castle  of  defence.  Nor 
is  a  breaking  open  of  houses  wherein  no  man  resides,  and 
which,  therefore,  for  the  time  being  are  not  mansion-houses, 
attended  with  the  same  circumstances  of  midnight  terror. 
A  house,  however,  wherein  a  man  sometimes  resides,  and 
which  the  owner  hath  only  left  for  a  short  season,  animo 
revertendi,  is  the  object  of  burglary,  though  no  one  be  in  it 
at  the  time  of  the  fact  committed.  And  if  the  barn,  stable, 
or  warehouse  be  parcel  of  the  mansion-house  and  within  the 
same  common  fence,  though  not  under  the  same  roof  or  con- 
tiguous, a  burglary  may  be  committed  therein,  for  the 
capital  house  protects  and  privileges  all  its  branches  and 

6.  Clark's  Crim.  Law,  267;  Wash.  the  curtilege.  Clark's  Crim.  Law, 
Crim.  Law.,  34.  In  some  states  "night-  2G6.  "  Dwelling-house  "  has  the  same 
time"  is  defined  by  statutes  and  in  signification  as  in  arson.  Id..  267, 
others  the  word  is  omitted  from  the  ante.  The  meaning  of  the  term 
definition.  Clark's  Crim.  Law,  267;  'house"  within  which  burglary  may 
Cen.  Stat.  Mass.,  ch,  172,  §  13;  Ses-  be  committed  has  been  changed  by 
sion  Laws  111.  1877,  p.  85.  statute    in    many    states    to    include 

7.  The  dwelling-house  of  God.  warehouses,  shops,  railroad  cars,  etc. 

8.  Mansion-house.  "  Dwelling-  See  Clark's  Crim.  Law,  269. 
house "   includes  an   outhouse   within 


Chap.  XVI.]     the  Habitations  of  Individuals.  721 

appurtenances,  if  within  the  curtilage  or  homestall.  A 
chamber  in  a  college  or  an  inn  of  court,  where  each  inhabit- 
ant hath  a  distinct  property,  is,  to  all  other  purposes  as  well 
as  this,  the  mansion-house  of  the  owner.  So  also  is  a  room 
or  lodging  in  any  private  house,  the  mansion  for  the  time 
being  of  the  lodger,  if  the  owner  doth  not  himself  dwell  in 
the  house,  or  if  he  and  the  lodger  enter  by  different  outward 
doors.  But  if  the  owner  himself  lies  in  the  house,  and  hath 
but  one  outward  door,  at  which  he  and  his  lodgers  enter, 
such  lodgers  seem  only  to  be  inmates,  and  all  their  apart- 
ments to  be  parcel  of  the  one  dwelling-house  of  the  owner. 
Thus,  too,  the  house  of  a  corporation,  inhabited  in  separate 
apartments  by  the  officers  of  the  body  corporate,  is  the 
mansion-house  of  the  corporation,  and  not  of  the  respective 
officers.  But  if  I  hire  a  shop,  parcel  or  another  man's 
house,  and  work  or  trade  in  it,  but  never  lie  there,  it  is  no 
dwelling-house,  nor  can  burglary  be  committed  therein;  for 
by  the  lease  it  is  severed  from  the  rest  of  the  house,  and 
therefore  is  not  the  dwelling-house  of  him  who  occupies  the 
other  part,  neither  can  I  be  said  to  dwell  therein  when  I 
never  lie  there.  [226]  Neither  can  burglary  be  committed 
in  a  tent  or  booth  erected  in  a  market  or  fair,  though  the 
owner  may  lodge  therein;  for  the  law  regards  thus  highly 
nothing  but  permanent  edifices,  a  house  or  church,  the  wall 
or  gate  of  a  town. 

3.  As  to  the  manner  of  committing  burglary,  there  must, 
be  both  a  breaking  and  an  entry  to  complete  it.  But  they 
need  not  be  both  done  at  once;  for  if  a  hole  be  broken  one 
night,  and  the  same  breakers  enter  the  next  night  through 
the  same,  they  are  burglars.  There  must  in  general  be  an 
actual  breaking,  not  a  mere  legal  clausum  f regit'-'  by  leaping 
over  invisible  ideal  boundaries,  which  may  constitute  a 
civil  trespass),  but  a  substantial  and  forcible  irruption. 
As  at  least  by  breaking  or  taking  out  tlie  glass  of,  or 
otherwise  opening  a  window;  picking  a  lock  or  opening  it 
with  a  key;  nay,  by  lifting  up  the  latch  of  a  door  or  un- 
loosing any  other  fastening  which  the  owner  has  XJrovidcd.^ 

9.  He  broke  the  close.  1.  Clark's  Crini.  Law,  2G2. 

46 


722  Offences  against  [Book  IV. 

But  if  a  person  leaves  his  doors  or  windows  open,  it  is  his 
own  folly  and  negligence,  and  if  a  man  enters  therein  it  is 
no  burgulary,^  yet  if  he  afterwards  unlocks  an  inner  or 
chamber  door,  it  is  so.  But  to  come  down  a  chimney  is  held 
a  burglarious  entry,  for  that  is  as  much  closed  as  the  nature 
of  things  will  permit.  So  also  to  knock  at  the  door,  and 
upon  opening  it  to  rush  in,  with  a  felonious  intent ;  or  under 
pretence  of  taking  lodgings  to  fall  upon  the  landlord  and 
rob  him;  or  to  procure  a  constable  to  gain  admittance  in 
order  to  search  for  traitors,  and  then  to  bind  the  constable 
and  rob  the  house,  —  all  these  entries  have  been  adjudged 
burglarious,  though  there  was- no  actual  breaking;  for  the 
law  will  not  suffer  itself  to  be  trifled  with  by  such  evasions, 
especially  under  the  cloak  of  legal  process.^  [227]  And  so 
if  a  servant  opens  and  enters  his  master's  chamber-door 
with  a  felonious  design,  or  if  any  other  person  lodging  in 
the  same  house  or  in  a  public  inn  opens  and  enters  another's 
door  with  such  evil  intent,  it  is  burglary.  Nay,  if  the  ser- 
vant conspires  with  a  robber,  and  lets  him  into  the  house 
by  night,  this  is  burglary  in  both;  for  the  servant  is  doing 
an  unlawful  act,  and  the  opportunity  afforded  him  of  doing 
it  with  greater  ease  rather  aggravates  than  extenuates  the 
guilt.  As  for  the  entry,  any  the  least  degree  of  it,  with  any 
part  of  the  body,  or  with  an  instrument  held  in  the  hands, 
is  sufficient;  as  to  step  over  the  threshold,  to  put  a  hand  or 
a  hook  in  at  a  window  to  draw  out  goods,  or  a  pistol  to 
demand  one's  money,  are  all  of  them  burglarious  entries.* 
The  entry  may  be  before  the  breaking  as  well  as  after;  for 
by  statute  12  Anne,  c.  7,  if  a  person  enters  into  the  dwelling- 
house  of  another  without  breaking  in,  either  by  day  or  by 
night,  with  intent  to  commit  felony,  or  being  in  such  a  house 
shall  commit  any  felony,  and  shall  in  the  night  break  out 
of  the  same,  this  is  declared  to  be  burglary;  there  having 
before  been  different  opinions  concerning  it:  Lord  Bacon 
holding  the  affirmative,  and  Sir  Matthew  Hale  the  negative. 
4.  As  to  the  intent,  it  is  clear  that  such  breaking  and 
entry  must  be  with  a  felonious  intent,  otherwise  it  is  only  a 

2.  Id.  4.  Id.,  265. 

3.  Id.,  264. 


Chap.  XVI.]     the  Habitations  of  Individuals.  723 

trespass.  And  it  is  the  same  whether  such  intention  bo 
actually  carried  into  execution  or  only  demonstrated  by 
some  attempt  or  overt  act,  of  wliicli  the  jury  is  to  judge. 
And  therefore  such  a  breach  and  entry  of  a  house  as  has 
been  before  described,  by  night,  with  intent  to  commit  a 
robbery,  a  murder,  a  rape,  or  any  other  felony,  is  burglary, 
whether  the  thing  be  actually  perpetrated  or  not.^  [228] 
Nor  does  it  make  any  difference  whether  the  offence  were 
felony  at  common  law,  or  only  created  so  by  statute,  since 
that  statute  which  makes  an  offence  felony  gives  it  inci- 
dentally all  the  properties  of  a  felony  at  common  law. 
Burglary  is  a  felony  at  common  law,  but  within  the  benefit 
of  clergy. 

6.  Clark's  Crim.  Law,  263. 


724  Ofeences  against  [Book  IV. 

CHAPTER  XVII. 

OF  OFFICERS  AGAIXST   PRIVATE   PROPERTY. 

I.  Larceny,  or  theft,  by  contraction  for  latrociny,  latro- 
cimum,  is  distinguished  by  the  law  into  two  sorts:  the  one 
called  simple  larceny,  or  plain  theft,  unaccompanied  with  any 
other  atrocious  circumstance,  and  mixed  or  compound 
larceny,  which  also  includes  in  it  the  aggravation  of  a  taking 
from  one's  house  or  person.  [229] 

And  first  of  simple  larceny,  which,  when  it  is  the  stealing 
of  goods  above  the 'value  of  twelvepence,  is  called  grand 
larceny;^  when  of  goods  to  that  value  or  under,  is  petit 
larceny,  —  offences  which  are  considerably  distinguished  in 
their  punishment,  but  not  otherw^ise. 

Simple  larceny  is  "  the  felonious  taking  ^  and  carrying 
away  of  the  personal  goods  of  another. ' ' 

1.  It  must  be  a  taking.  [230]  This  implies  the  consent 
of  tke  owner  to  be  wanting.  Therefore  no  delivery  of 
the  goods  from  the  owner  to  the  offender  upon  trust  can 
ground  a  larceny.  As  if  A  lends  B  a  horse  and  he  rides 
away  with  him,  or  if  I  send  goods  by  a  carrier  and 
he  carries  them  away,  these  are  no  larcenies.  But  if  the 
carrier  opens  a  bale  or  pack  of  goods,  or  pierces  a  vessel  of 
wine  and  takes  away  part  thereof,  or  if  he  carries  it  to  the 
place  appointed  and  afterw^ards  takes  away  the  whole, 
these  are  larcenies;  for  here  the  animus  furandi^  is  mani- 
fest, since  in  the  first  case  he  had  otherwise  no  inducement 
to  open  the  goods,  and  in  the  second  the  trust  was  deter- 
mined, the  deliver}^  having  taken  its  effect.  But  bare  non- 
deliver}^  shall  not  of  course  be  intended  to  arise  from  a 
felonious  design,  since  that  may  happen  from  a  variety  of 
other  accidents.  Neither  by  the  common  law  was  it  larceny 
in  any  servant  to  run  aw^ay  w^ith  the  goods  committed  to 

1.  This   distinction    between    grand  2.  See   several    definitions   collected 

and  petit  larceny  has  been  abolished  in  Clark's  Crim.  Law    (3d  Ed.),  271, 

by  statute  in  some  of  the  states  and  note;  Wash.  Crim.  Law  (3d  Ed.),  56. 

retained  in  others.  3.  Intent  to  steal. 


CiiAP.  XVII.]  Private  Property.  725 

him  to  keep,  but  only  a  breach  of  civil  trust.  But  if-he  had 
not  the  possession,  but  only  the  care  and  oversight  of  the 
goods,  as  the  butler  of  the  plate,  the  shepherd  of  the  sheep, 
and  the  like,  the  embezzling  of  them  is  felony  at  common 
law.  [231]  So  if  a  guest  robs  his  inn  or  tavern  of  a  piece 
of  plate,  it  is  larceny;  for  he  hath  not  the  possession  de- 
livered to  him,  but  merely  the  use.  Under  some  circum- 
stances a  man  may  be  guilty  of  felony  in  taking  his  own 
goods:  as  if  he  steals  them  from  a  pawnbroker,  or  any  one 
to  whom  he  hath  delivered  and  entrusted  them,  with  intent 
to  charge  such  bailee  with  the  value;  or  if  he  robs  his  own 
messenger  on  the  road,  with  an  intent  to  charge  the  hundred 
with  the  loss  according  to  the  statute  of  Winchester. 

2.  There  must  not  only  be  a  taking,  but  a  carrying  away."* 
A  bare  removal  from  the  place  in  which  he  found  the  goods, 
though  the  thief  does  not  quite  make  off  with  them,  is  a  suf- 
ficient asportation,  or  carrying  away.  As  if  a  man  be  lead- 
ing another's  horse  out  of  a  close,  and  be  apprehended  in 
the  fact;  or  if  a  guest,  stealing  goods  out  of  an  inn,  has 
removed  them  from  his  chamber  downstairs, —  these  have 
been  adjudged  sufficient  carryings  away  to  constitute  a  lar- 
ceny. Or  if  a  thief,  intending  to  steal  plate,  takes  it  out 
of  a  chest  in  which  it  was  and  lays  it  down  upon  the  floor, 
but  is  surprised  before  he  can  make  his  escape  with  it, 
this  is  larceny. 

3.  This  taking  and  carrjdng  away  must  also  be  felonious, 
that  is,  done  animo  furandi,^  or,  as  the  civil  law  expresses  it, 
lucri  causa.^   [232]     This  requisite,  besides  excusing  those 

4.  Every  larceny  at  common  law  but  if  he  breaks  open  the  box  or  pack- 
includes  a  trespass  and  an  asporta-  age  and  wrongfully  removes  a  part 
lion.     Clark's  Crim.  Law,  279.  he    is   guilty   of   larceny   at    common 

A  bailee   lawfully   in  possession  of  law.     Clark's   Crim.  Law,  282;    Com. 

a  thing  who  wrongfully  appropriates  v.    Brown,   4    Ma^s.    580;    Nichols   v. 

it   to   his   own   use   does   not   commit  People,  17  N.  Y.  114. 

larceny,   although   he   may   be  guilty  5.  With  intent  to  steal. 

of    embezzlement  under   the   statutes.  6.  For  the  sake  of  gain. 

Id.,  281.     A  carrier  of  goods  who  un-  The    felonious    quality    consists    in 

lawfully  appropriates  a  box  or  pack-  the  intention   of   the  prisoner   to   de- 

a^e  and  contents  entrusted  to  him  is  fraud    the   owner    and    to    apply    the 

not   guilty   of   common    law    larceny;  thing  stolen  to  his  own  use.     And  it 


726  Offences  against  [Book  IV. 

who  labor  under  incapacities  of  mind  or  will,  indemnifies 
also  mere  trespassers  and  other  petty  offenders.  As  if  a 
servant  takes  his  master's  horse  without  his  knowledge 
and  brings  him  home  again;  if  a  neighbor  takes  another's 
plough  that  is  left  in  the  field  and  uses  it  upon  his  own  land 
and  then  returns  it;  if  under  color  of  arrear  of  rent,  where 
none  is  due,  I  distrain  another's  cattle  or  seize  them, —  all. 
these  are  misdmeanors  and  trespasses,  but  no  felonies. 

4.  This  felonious  taking  and  carrying  away  must  be  of 
the  personal  goods  of  another,^  for  if  they  are  things  real, 
or  savor  of  the  realty,  larceny  at  the  common  law  cannot 
be  committed  of  them.  Lands,  tenements,  and  heredita- 
ments (either  corporeal  or  incorporeal)  cannot  in  their  na- 
ture be  taken  and  carried  away.  And  of  things  likewise 
that  adhere  to  the  freehold,  as  corn,  grass,  trees,  and  the 
like,  or  lead  upon  a  house,  no  larceny  could  be  committed 
by  the  rules  of  the  common  law;  but  the  severance  of  them 
was,  and  in  many  things  is  still,  merely  a  trespass  which 
depended  on  a  subtilty  in  the  legal  notions  of  our  ancestors. 
These  things  were  parcel  of  the  real  estate,  and,  therefore, 
while  they  continued  so,  could  not  by  any  possibility  be  the 
subject  of  theft,  being  absolutely  fixed  and  immovable. 
And  if  they  were  severed  by  violence  so  as  to  be  changed 
into  movables,  and  at  the  same  time  by  one  and  the  same 
continued  act  Carried  off  by  the  person  who  severed  them, 
they  could  never  be  said  to  be  taken  from  the  proprietor, 
in  this  their  newly  acquired  state  of  mobility  (which  is 
essential  to  the  nature  of  larceny),  being  never,  as  such, 
in  the  actual  or  constructive  possession  of  any  one,  but  of 
him  who  committed  the  tresjjass.   [233]     He  could  not  in 

is  not  necessary  that  the  taking  sliould  nient  seems  to  be  the  better  opinion, 

be  done  lucri  causa ;  taking  with  an  See    the    cases    collected    in    Clark's 

intent  to  destroy  will  be  sufficient  to  Crim.  Law   (2d  Ed.),  300. 

constitute  the  offence  if  done  to  serve  7.  Animals  ferae  naturae,  fish  in  a 

the  prisoner  or  another  person,  though  river,  bills,  not*  s  and  other  choses  in 

not  in  a  pecuniary  way.    Wash.  Crim.  action;  ore  before  it  has  been  mined; 

Law    (3d   Ed.),   57.     LTpon   the   ques-  ice  before   it   has  been   cut,   etc.,  are 

tion  whether  the  taking  must  bo  lucri  not  the  subject  of  larceny  at  common 

causa,    however,    the    authorities    are  law.     Clark's  Crim.  Law,  272. 
not   agreed,   though  the  above  state- 


Chap.  XVII.]  Pkivate  Peopekty.        '  727 

strictness  be  said  to  have  taken  what  at  that  time  were  the 
personal  goods  of  another,  since  the  very  act  of  taking  was 
what  turned  them  into  personal  goods.  But  if  the  thief 
severs  them  at  one  time,  whereby  the  trespass  is  com- 
pleted, and  they  are  converted  into  personal  chattels,  in 
the  constructive  possession  of  him  on  whose  soil  they  are 
left  or  laid,  and  come  again  at  another  time,  when  they  are 
so  turned  into  personalty,  and  takes  them  away,  it  is  lar- 
ceny, and  so  it  is  if  the  owner  or  any  one  else  has  severed 
them.^  Stealing  ore  out  of  mines  is  also  no  larceny,  upon 
the  same  principle  of  adherence  to  the  freehold.  [234] 
Upon  nearly  the  same  principle  the  stealing  of  writings  re- 
lating to  a  real  estate  is  no  felony,  but  a  trespass,  because 
they  concern  the  land,  or  savor  of  the  realty ;,  and  are  con- 
sidered as  part  of  it  by  the  law,  so  that  they  descend  to  the 
heir  together  with  the  land  Avhich  they  concern.^ 

Bonds,  bills,  and  notes,  which  concern  mere  Glioses  in 
action,  were  also  at  the  common  law  held  not  to  be  such 
goods  whereof  larceny  might  be  committed,  being  of  no 
intrinsic  value,  and  not  importing  any  property  in  posses- 
sion of  the  person  from  whom  they  are  taken.  ^  Larceny 
also  could  not  at  common  law  be  committed  of  treasure- 
trove  or  wreck  till  seized  by  the  king  or  him  who  hath  the 
franchise,  for  till  such  seizure  no  one  hath  a  determinate 
property  therein.   [235] 

Larceny  also  cannot  be  committed  of  such  animals  in 
which  there  is  no  property  either  absolute  or  qualified,  as 
of  beasts  that  are  ferae  naturae  and  unreclaimed,  such  as 
deer,  hares,  and  conies,  in  a  forest,  chase,  or  warren;  fish 
in  an  open  river  or  pond;  or  wild  fowls  at  their  natural 
liberty.  But  if  they  are  reclaimed  or  confined,  and  may 
serve  for  food,  it  is  otherwise  even  at  common  law;  for  of 
deer  so  inclosed  in  a  park  that  they  may  be  taken  at 
pleasure,  fish  in  a  trunk,  and  pheasants  or  partridges  in  a 
mew,  larceny  may  be  committed.     But  of  all  valuable  do- 

8.  The  felonious  taking  and  carry-  9.  See,     generally,     Clark's     Crim. 

ing  away  of' various  kinds  of  fixtures.  Law,  272-277. 

trees,  fruit,  vegetables,  etc.,  has  very  1.  Made  larceny  by  statute  in  some 

generally  been  made  larceny  by  stat-  states, 
ute 


723  Offences  against  [Book  IV. 

mestic  animals,  as  horses  and  other  beasts  of  draught,  and 
of  all  animals  domitae  naturae,^  which  serve  for  food,  as 
neat  or  other  cattle,  swine,  poultry,  and  the  like,  and  of 
their  fruit  or  produce  taken  from  them  while  living,  as  milk 
or  wool,  larceny  may  be  committed ;  and  also  of  the  flesh  of 
such  as  are  either  domitae  or  ferae  naturae  when  killed. 
[236]  As  to  those  animals  which  do  not  serve  for  food,  and 
which  therefore  the  law  holds  to  have  no  intrinsic  value, 
as  dogs  of  all  sorts,^  and  other  creatures  kept  for  whim  and 
pleasure,  though  a  man  may  have  a  base  property  therein 
and  maintain  a  civil  action  for  the  loss  of  them,  yet  they 
are  not  of  such  estimation  as  that  the  crime  of  stealing 
them  amounts  to  larceny. 

Notwithstanding,  however,  that  no  larceny  can  be  com- 
mitted unless  there  be  some  property  in  the  thing  taken,  and 
an  owner,  yet  if  the  owner  be  unknown,  provided  there  be 
a  property,  it  is  larceny  to  steal  it,  and  an  indictment  will 
lie  for  the  goods  of  a  person  unknown.  This  is  the  case  of 
stealing  a  shroud  out  of  a  grave,  which  is  the  property  of 
those,  whoever  they  were,  that  buried  the  deceased;  but 
stealing  the  corpse  itself,  which  has  no  owner  (though  a 
matter  of  great  indecency),  is  no  felony,  unless  some  of 
the  grave-clothes  be  stolen  with  it.^ 

Mixed,  or  compound  larceny  is  such  as  has  all  the  prop- 
erties of  simple  larceny,  but  is  accompanied  with  either  one 
or  both  of  the  aggravations  of  a  taking  from  one's  ho\ise 
or  person.  [239]  First,  therefore,  of  larceny  from  the 
Jiouse,  and  then  of  larceny  from  the  person. 

1.  Larceny  from  the  house,  though  it  seems  (from  the 
considerations  mentioned  in  the  preceding  chapter)  to  have 
a  higher  degree  of  guilt  than  simple  larceny,  yet  it  is  not 
at  all  distinguished  from  the  other  at  common  law,  unless 
where  it  is  accompanied  with  the  circumstance  of  breaking 

2.  Of  a  domestic  nature.  larceny     at     common     law.       Clark's 

3.  Dogs  when  taxable;  tame  song  Crim.  Law,  273,  274;  Washburn's 
birds;  tame  doves;  reclaimed  honey  Crim.  Law  (3d  Ed.),  59,  60  and  notes, 
bees:  oysters  planted  in  public  waters  4.  See  Williams  v.  Williams.  2L 
where  they  did  not  grow  naturally  Am.  Law  Reg.  (N.  S.)  503  and  note, 
with  the  spot  marked  off  by  stakes,  where  the  cases  are  fully  collected, 
etc.,    have  been   held   the    subject   of 


Chap.  XVIL] 


Pkivate  Property. 


729 


the  house  by  night;  and  when  we  have  seen  that  it  falls 
under  another  description,  viz.,  that  of  burglary.^   [240] 


5.  The  statutes  of  the  several  states 
have  enlarged  the  common  law  crime 
of  larceny  and  created  species  of  lar- 
ceny other  than  those  at  common  law. 
For  example,  the  statute  of  Illinois 
(R.  S.  1874,  373,  §  139),  defines  lar- 
ceny as  follows: 

"  Larceny  is  the  felonious  stealing, 
taking  and  carrying,  leading,  riding 
or  driving  away  the  personal  goods 
of  another.  Larceny  shall  embrace 
every  theft  which  deprives  another  of 
his  money  or  other  personal  property, 
or  those  means  or  muniments  by 
which  the  right  and  title  to  property, 
real  or  personal,  may  be  ascertained. 
Private  stealing  from  the  person  of 
another  and  from  a  house  in  the  day- 
time shall  be  deemed  larceny.  Lar- 
ceny may  also  be  committed  by  feloni- 
ously taking  and  carrying  away  any 
bond,  bill,  note,  receipt  or  any  in- 
strument of  writing  of  value  to  the 
owner."  The  amendment  of  1877  to 
section  70  of  the  Criminal  Code,  on 
burglary,  abrogated  the  old  distinc- 
tion between  entry  in  the  day-time 
and  night-time  and  made  certain  en- 
tries in  the  day-time  burglary;  but 
did  not  change  the  phraseology  of  the 
definitions  above  quoted.  See  1  Starr 
&  Curtis's  Annotated  Statutes,  111., 
ch.  38,  §  305. 

Section  312  (Starr  &  Curtis,  id.) 
provides  that  "  if  any  bailee  of  any 
bank-bill,  note,  money  or  other  prop- 
erty, shall  convert  the  same  to  his 
own  use,  with  intent  to  steal  the  same, 
or  secretes  the  same  with  intent  so  to 
do,  he  shall  be  deemed  guilty  of  lar- 
ceny." 

The  statute  also  (Id.,  §  313)  makes 
it  larceny  for  a  bailee  to  fraudulently 
convert  property  bailed  to  him  even 
though  he  does  not  break  bulk  or 
otherwise  determine  the  bailment;   it 


also  (Id.,  §§  314,  316,  317)  makes 
it  larceny  to  steal  beasts  and  birds 
ferae  naturae,  lead  pipe,  faucets,  etc., 
from  any  building,  things  attached  to 
the  realty,  newspapers,  etc.,  and  makes 
it  a  misdemeanor  (Id.,  §  318)  to 
wrongfully  tap  any  connecting  wire 
for  taking  news  dispatches.  See,  gen- 
erally, Moore's  (111.)  Crim.  Law, 
Larceny,  §§  483  et  seq. 

The  statutes  of  Illinois  also  (Id., 
§  165)  provide  that  "whoever  embez- 
zles or  fraudulently  converts  to  his 
own  use,  or  secretes  with  intent  to  em- 
bezzle or  fraudulently  converts  (sic.) 
to  his  own  use,  money,  goods  or  prop- 
erty delivered  to  him,  which  may  be 
the  subject  of  larceny,  or  any  part 
thereof,  shall  be  deemed  guilty  of  lar- 
ceny." Section  166,  id.,  makes  the 
embezzlement  of  his  empolyer's  prop-, 
erty  by  any  officer,  agent,  clerk,  or 
servant  of  any  incorporated  company, 
person  or  copartnership,  or  society, 
larceny.  Section  167,  id.,  makes  the 
embezzlement  of  money,  notes,  bonds, 
etc.,  by  any  banker,  broker,  etc.,  lar- 
ceny. 

There  are  other  section  germane  to 
the  subject  but  the  above  will  suffice 
to  show  the  extensive  statutory 
changes  of  the  common  law  in  Illi- 
nois. Doubtless,  equally  extensive 
changes  will  be  found  in  most  of  the 
other  states.  Students  expecting  to 
practice  should,  therefore,  after  study- 
ing the  common  law  upon  the  subject 
consult  the  statutes  of  the  states  in 
which  they  respectively  expect  to  prac- 
tice. See,  generally,  Clark's  Crim. 
Law  (2d  Ed.),  ch.  11;  Washburn's 
Crim.  Law  (3d  Ed.),  47;  Bishop's 
New  Crim.  Law  and  McClain's  Crim. 
Law,  titles  Larceny  and  Embezzle- 
ment. 


7S0  Offences  against  [Book  IV. 

2.  Larceny  from  the  person  is  either  by  privately  stealing, 
or  by  open  and  violent  assault,  which  is  usually  called  rob- 
hen/y   [241] 

Open  and  violent  larceny  from  the  person,  or  robbery,  is 
the  felonious  and  forcible  taking  from  the  person  of  another 
of  goods  or  money  to  any  value,  by  violence  or  putting  him 
in  fear."  [242]  There  must  be  a  taking,  otherwise  it  is  no 
robbery.  A  mere  attempt  to  rob  was  indeed  held  to  be 
felony  so  late  as  Henry  IV. 's  time,  but  afterwards  it  was 
taken  to  be  only  a  misdemeanor,  and  punishable  with  fine 
and  imprisonment,  till  the  statute  7  Geo.  II.  c.  21,  which 
makes  it  a  felony.  If  the  thief,  having  once  taken  a  purse, 
returns  it,  still  it  is  a  robbery;  and  so  it  is  whether  the  tak- 
ing be  strictly  from  the  person  of  another,  or  in  his  presence 
only:  as  where  a  robber  by  menaces  and  violence  puts  a 
man  in  fear,  and  drives  away  his  sheep  or  his  cattle  before 
his  face.  But  if  the  taking  be  not  either  directly  from  his 
person  or  in  his  presence,  it  is  no  robbery.  2.  It  is  imma- 
terial of  what  value  the  thing  taken  is:  a  penny  as  well  as 
a  pound,  thus  forcibly  extorted,  makes  a  robbery.  3.  Lastly, 
the  taking  must  be  by  force  or  a  previous  putting  in  fear, 
which  makes  the  violation  of  the  person  more  atrocious  than 
privately  stealing.  This  previous  violence,  or  putting  in 
fear,  is  the  criterion  that  distinguishes  robbery  from  other 
larcenies.  For  if  one  [243]  privately  steals  sixpence  from 
the  person  of  another,  and  afterwards  keeps  it  by  putting 
him  in  fear,  this  is  no  robbery,  for  the  fear  is  subsequent: 
neither  is  it  capital,  or  privately  stealing,  being  under  the 
value  of  twelvepence.  Not  that  it  is  indeed  necessary, 
though  usual,  to  lay  in  the  indictment  that  the  robbery  was 
committed  by  putting  in  fear;  it  is  sufl&cient,  if  laid  to  be 
done  by  violence.  And  when  it  is  laid  to  be  done  by  putting 
in  fear,  this  does  not  imply  any  great  degree  of  terror  or 
affright  in  the  party  robbed :  it  is  enough  that  so  much  force, 
or  threatening  by  word  or  gesture,  be  used,  as  might  create 
an  apprehension  of  danger,  or  induce  a  man  to  part  with 

6.  As    to    the    offence   of   privately      without    his    knowledge,    consult    the 
stealing  from   a  man's  person,  as   by      local  statutes, 
picking  his  pocket  or  the  like,  privily  7.  Clark's  Crim.  Law,  323. 


Chap.  XVIL]  Private  Property.  721 

his  property  without  or  against  his  consent.  Thus,  if  a 
man  be  knocked  down  without  previous  warning,  and 
stripped  of  his  property  while  senseless,  though  strictly  he 
cannot  be  said  to  be  put  in  fear,  yet  this  is  undoubtedly  a 
robbery.  Or,  if  a  person  with  a  sword  drawn  begs  an 
alms,  and  I  give  it  him  through  mistrust  and  apprehension 
of  violence,  this  is  a  felonious  robbery.  So  if,  under  a  pre- 
tence of  sale,  a  man  forcibly  extorts  money  from  another, 
neither  shall  this  subterfuge  avail  him.  But  it  is  doubted, 
whether  forcing  a  higler,  or  other  chapman,  to  sell  his 
wares,  and  giving  him  the  full  value  of  them,  amounts  to 
so  heinous  a  crime  as  robbery.® 

II.  Malicious  mischief,  or  damage,  is  the  next  species  of 
injury  to  private  property  which  the  law  considers  as  a 
public  crime.  This  is  such  as  is  done,  not  animo  furandi^ 
or  with  an  intent  of  gaining  by  another's  loss,  which  is 
some,  though  a  weak,  excuse,  but  either  out  of  a  spirit  of 
wanton  cruelty  or  black  and  diabolical  revenge,  in  which  it 
bears  a  near  relation  to  the  crime  of  arson;  for  as  that 
affects  the  habitation,  so  this  does  the  other  property  of 
individuals.  And  therefore  any  damage  arising  from  this 
mischievous  disposition,  though  only  a  trespass  at  common 
law,  is  now  by  a  multitude  of  statutes  made  penal  in  the 
highest  degree.^ 

8.  This  crime  includes  all  the  ele-  as  cannot  be  attached  to  his  person, 

ments    of    larceny     (which    see)    and  such    as    cattle,    horses,    etc.      So,    if 

more,  viz.,  the  taking  from  the  person  they  are  taken  from  a  desk  which  the 

or   in   his   presence,   and   against   his  owner  is  induced  to  open  by  violence 

will   by   violence  or   putting   in   fear,  or   through    fear.     Wash.   Crim.   Law 

See  Clark's   Crim.  Law,  323-326.  (3d    Ed.),    98,    99;    2    Whart.  Crim. 

To  constitute  a  taking  the  property  Law  (7th  Ed.),  §  1166  et  seq.  ■ 
must  have  passed  entirely  into  the  9.  With  intent  to  steal, 
possession  of  the  robber;  thus  snatch-  1.  Malicious  mischief  is  a  misde- 
ing  an  ear-ring  from  a  lady's  ear  so  meanor  at  common  law,  but  has  been 
that  the  ear  is  thereby  torn  is  rob-  made  a  crime  by  statutes  of  manifold 
bery,  though  the  ear-ring  is  dropped  character  in  all  the  states.  There  is 
into  her  hair  and  found  there  bj'  the  considerable  conflict  among  the  corn- 
owner.  Wash.  Crim.  Law  (3d  Ed.),  mon  law  authorities.  This  crime  is 
«7;   Com.  V.  Clifford,  8  Cush.  215.  distinguished    from    larceny    by    the 

Taking    articles    from    the    owner's  lack  of  the  animus  furandi,  or  inten- 

presenee  by  violence  or  putting  in  fear  tion  to  steal.     Malice  is  an  essential 

is  robbery  though  the  articles  are  such  element  of  the  crime  and  must  be  di- 


732 


OFFE^'CES  AGAINST  PRIVATE  PROPERTY.        [BoOK  IV. 


III.  Forgery,  or  the  crimen  falsi,  may  be  defined  at  com- 
mon law  to  be  "  the  fraudulent  making  or  alteration  of  a 
writing  to  the  prejudice  of  another  man's  right,^  for  which 
the  offender  may  suffer  fine,  imprisonment,  and  pillory. 
[247]  And  also,  by  a  variety  of  statutes,  a  more  severe 
punishment  is  inflicted  on  the  offender  in  many  particular 
cases,  which  are  so  multiplied  of  late  as  almost  to  become 
general.  So  that,  I  believe,  through  the  number  of  these 
general  and  special  provisions,  there  is  now  hardly  a  case 
possible  to  be  conceived  wherein  forgery  that  tends  to 
defraud,  whether  in  the  name  of  a  real  or  fictitious  person, 
is  not  made  a  capital  crime.  [250] 


rected  against  the  owner  of  the  prop- 
erty injured.  Consult  the  state  stat- 
utes. 

2.  Clark's  Crim.  Law,  333;  Wash. 
Crim.  Law  (3d  Ed.),  53. 

This  offence  was  only  a  misde- 
meanor at  common  law,  but  is  now,  so 
far  as  we  know,  every  where  by  stat- 
ute made  a  felony.  The  making  or  al- 
teration must  be  false  and  with  in- 
tent to  defraud;  the  instrument  as 
made  or  altered,  must  apparently  be 
legally  efficient  to  impose  or  charge 
a  liability,  that  is  to  say,  it  must  be 
material.  Clark's  Crim.  Law  (2d 
Ed.),  333;  Wash.  Crim.  Law  (3d 
Ed.),  53.  The  instrument  forged  may 
be  a  letter  of  recommendation,  an  or- 
der for  delivery  of  goods,  etc.,  a  rail- 
road or  theatre  ticket,  as  well  as  a 
deed,  mortgage,  promissory  note,  bill 
of  exchange  or  other  written  contract. 
Id.  and  cases  cited  in  notes. 

Forgery  may  be  committed  by  sign- 
ing one's  own  name  in  such  a  manner 
as  to  make  the  writing  purport  to  be 
that  of  another  person  of  the  same 
or  a  similar  name.  Clark's  Crim. 
Law,  324;  Com.  v.  Foster,  114  Mass. 
311;  it  may  be  committed  by  signing 
the  name  of  a  fictitious  person. 
Clark's  Crim.  Law,  334;  McClain's 
Crim.  Law,  §  764;  People  v.  Marion, 
29    Mich.    31;    State   v.    Minton,    116 


Mo.  605.  See  contra,  Com.  v.  Bald- 
win, 11  Gray,  197 

Alterations  or  erasures  must  be  ma- 
terial. The  addition  of  words  which 
the  law  would  imply,  adding  the 
name  of  a  witness  when  the  paper 
does  not  require  attestation,  etc.,  do 
not  constitute  forgery;  but  changing 
the  date  (when  material)  amount, 
place  of  payment,  etc.,  are  material. 
Altering  one's  own  note  after  its  de- 
livery may  be  a  forgery.  See,  gener- 
ally, Clark's  Crim.  Law  (2d  Ed.), 
333,  340,  where  the  cases  are  well 
collectad  and  considered.  As  this  of- 
fence has  been  the  subject  of  much 
legislation  the  statutes  should  always 
be  examined. 

Uttering  and  publishing  a  false  and 
forged  paper  knowing  it  to  be  such, 
is  punishable  at  common  law  provided 
a  fraud  is  thereby  perpetrated.  The 
offence  of  uttering  is  distinct  from 
that  of  forgery;  but  both  offences 
may  be  charged  in  separate  counts  of 
the  same  indictment,  though  there 
can  be  only  one  judgment  wliere  one 
offence  forms  part  of  the  other.  Wash. 
Crim.  Tvaw  (3d  Ed.),  56;  3  GrcenL 
Evid.  103;  Parker  v.  People,  97  111. 
32. 

Uttering  false  instruments  is  usu- 
ally made  a  substantive  offence  by 
statute  in  the  several  states. 


Chap.  XVIIL]     Means  of  Preventing  Offences.  733 

CHAPTE-R  XVIII. 

OF  THE  MEANS  OF  PREVENTING  OFFENCES. 

Preventive  justice  consists  in  obliging  those  persons 
whom  there  is  a  probable  ground  to  suspect  of  future  mis- 
behavior to  stipulate  with  and  to  give  full  assurance  to  the 
public  that  such  offence  as  is  apprehended  shall  not  happen, 
by  finding  pledges  or  securities  for  keeping  the  peace,  or 
for  their  good  behavior.  [251]  Let  us  consider,  first,  what 
this  security  is;  next,  who  may  take  or  demand  it;  and 
lastly,  how  it  may  be  discharged. 

1.  This  security  consists  in  being  bound,  with  one  or 
more  securities,  in  a  recognizance  or  obligation  to  the  king, 
entered  on  record  and  taken  in  some  court  or  by  some  judi- 
cial officer,  whereby  the  parties  acknowledged  themselves 
to  be  indebted  to  the  crown  in  the  sum  required  (for  in- 
stance 1001.) ,  with  condition  to  be  void  and  of  none  effect 
if  the  party  shall  appear  in  court  on  such  a  day,  and  in  the 
mean  time  shall  keep  the  peace;  either  generally,  toward 
the  king  and  all  his  liege  people,  or  particularly  also  with 
regard  to  the  person  who  craves  the  security.  [253]  Or 
if  it  be  for  the  good  behavior,  then  on  condition  that  he 
shall  demean  and  behave  himself  well  (or  be  of  good  be- 
havior), either  generally  or  specially,  for  the  time  therein 
limited,  as  for  one  or  more  years,  or  for  life.  This  recog- 
nizance, if  taken  by  a  justice  of  the  peace,  must  be  certified 
to  the  next  sessions,  in  pursuance  of  the  statute  3  Hen,  VII. 
c.  1,  and  if  the  condition  of  such  recognizance  be  broken, 
by  any  breach  of  the  peace  in  the  one  case  or  any  misbe- 
havior in  the  other,  the  recognizance  becomes  forfeited  or 
absolute,  and  being  estreated  or  extracted  (taken  out  from 
among  the  other  records)  and  sent  up  to  the  Exchequer, 
the  party  and  his  sureties,  having  now  become  the  king's 
absolute  debtors,  are  sued  for  the  several  sums  in  which 
they  are  respectively  bound. 

2.  Any  justices  of  the  peace,  by  virtue  of  their  commis- 
sion, or  those  who  are  ex-officio  conservators  of  the  peace 


734  Means  of  Preventing  Offences.        [Book  IV. 

may  demand  such  security  according  to  their  own  discre- 
tion; or  it  may  be  granted  at  the  request  of  any  subject, 
upon  c^ue  cause  shown,  provided  such  demandant  be  under 
the  king's  protection.  Wives  may  demand  it  against  their 
husbands,  or  husbands,  if  necessary,  against  their  wives.' 
[254]  But  feme-coverts  and  infants  under  age  ought  to 
find  security  by  their  friends  only,  and  not  to  be  bound 
themselves;  for  they  are  incapable  of  engaging  themselves 
to  answer  any  debt,  which,  as  we  observed,  is  the  nature 
of  these  recognizances  or  acknowledgments. 

3.  A  recognizance  may  be  discharged  either  by  the  de- 
mise of  the  king,  to  whom  the  recognizance  is  made;  or  by 
the  death  of  the  principal  party  bound  thereby,  if  not  before 
forfeited;  or  by  order  of  the  court  to  which  such  recog- 
nizance is  certified  by  the  justices  (as  the  quarter  sessions, 
assises,  or  King's  Bench),  if  they  see  sufficient  cause;  or  in 
case  he  at  whose  request  it  was  granted,  if  granted  upon 
a  private  account,  will  release  it,  or  does  noit  make  his 
appearance  to  pray  that  it  may  be  continued. 

Thus  far  what  has  been  said  is  applicable  to  both  species 
of  recognizances,  for  the  peace,  and  for  the  good  hchavior. 
But  as  these  two  species  of  securities  are  in  some  respects 
different,  especially  as  to  the  cause  of  granting  or  the  means 
of  forfeiting  them,  I  shall  now  consider  them  separately; 
and  first  shall  show  for  what  cause  such  a  recognizance, 
with  sureties  for  the  peace,  is  grantable,  and  then,  how  it 
may  be  forfeited. 

1.  Any  justice  of  the  peace,^  may,  ex-officio,  bind  all  those 
to  keep  the  peace  who  in  his  presence  make  any  affray;  or 
threaten  to  kill  or  beat  another;  or  contend  together  with 
hot  and  angry  words;  or  go  about  with  unusual  weapons 
or  attendance,  to  the  terror  of  the  people;  and  all  such  as 
he  knows  to  be  common  barrators;  and  such  as  are  brought 
before  him  by  the  constable  for  a  breach  of  peace  in  his 

1.  statutes  similar  in  substance  to  (Crim.  Code),  Division  5.     See,  also, 

the   text   will  be   found,   probably,   in  Moore's  Crim.  Law. 
all  the  states  of  the  Union.     The  Illi-  2.  Judges  of  courts  of  record  are, 

r.ois  statute  will  be  found  in  1  Starr  as    a    rule,    also    conservators   of   the 

&  Curtis's  Annotated   Statutes,   1373  peace. 


Chap.  XVIIL]     Means  of  Preventing  Offences.  735 

presence;  and  all  such  persons  as,  having  been  before  bound 
to  the  peace,  have  broken  it  and  forfeited  their  recog- 
nizances. [255]  Also  wherever  any  private  man  hath  just 
cause  to  fear  that  another  will  burn  his  house  or  do  him  a 
corporal  injury,  by  killing,  imprisoning,  or  beating  him, 
or  that  he  will  procure  others  so  to  do,  he  may  demand 
surety  of  the  peace  against  such  person;  and  every  justice 
of  the  peace  is  bound  to  grant  it  if  he  who  demands  it  will 
make  oath  that  he  is  actually  under  fear  of  death  or  bodily 
harm,  and  will  show  that  he  has  just  cause  to  be  so,  by 
reason  of  the  other's  menaces,  attempts,  or  having  lain  in 
wait  for  him,  and,  will  also  further  swear  that  he  does  not 
require  such  surety  out  of  malice  or  for  mere  vexation. 
This  is  called  swearing  the  peace  against  another;  and  if  the 
party  does  not  find  such  sureties  as  the  justice  in  his  dis- 
cretion shall  require,  he  may  immediately  be  committed 
till  he  does. 

2.  Such  recognizance  for  keeping  the  peace  when  given 
may  be  forfeited  by  any  actual  violence,  or  even  an  assault 
or  menace  to  the  person  of  him  who  demanded  it,  if  it  be 
a  special  recognizance;  or,  if  the  recognizance  be  general, 
by  any  unlawful  action  whatsoever  that  either  is  or  tends  to 
a  breach  of  the  peace;  or  more  particularly  by  any  one  of 
the  many  species  of  offences  which  were  mentioned  as 
crimes  against  the  public  peace  in  the  eleventh  chapter  of 
this  book;  or  by  any  private  violence  committed  against 
any  of  Ms  Majesty's  subjects.  But  a  bare  trespass  upon 
the  lands  or  goods  of  another,  which  is  a  ground  for  a  civil 
action,  unless  accompanied  with  a  wilful  breach  of  the 
peace,  is  no  forfeiture  of  the  recognizance.  Neither  are 
mere  reproachful  words,  as  calling  a  man  knave  or  liar,  any 
breach  of  the  peace  so  as  to  forfeit  one's  recognizance 
(being  looked  upon  to  be  merely  the  effect  of  unmeaning 
heat  and  passion),  unless  they  amount  to  a  challenge  to 
fight.   [256] 

The  other  species  of  recognizance,  with  sureties,  is  for 
the  good  abearance  or  good  behavior.  This  includes  se- 
curity for  the  peace  and  somewhat  more;  we  will  therefore 
examine  it  in  the  same  manner  as  the  other. 


736  Means  of  Preventing  Offences.        [Book  IV. 

1.  First,  then,  the  justices  are  empowered  by  the  statute 
34  Edw.  III.  c.  1,  to  bind  over  to  the  good  behavior  toward 
the  king  and  his  people  all  them  th<it  he  not  of  good  fame, 
wherever  they  be  found,  to  the  intent  that  the  people  be  not 
troubled  nor  endamaged,  nor  the  peace  diminished,  nor  mer- 
chants and  others  passing  by  the  highways  of  the  realm  be 
disturbed  nor  put  in  the  peril  which  may  happen  by  such 
offenders.  Under  the  general  words  of  this  expression,  that 
he  not  of  good  fame,  it  is  holden  that  a  man  may  be  bound 
to  his  good  behavior  for  causes  of  scandal  contra  honos  mores, 
as  well  as  contra  pacem, —  as  for  haunting  bawdy-houses  with 
women  of  bad  fame,  or  for  keeping  such  women  in  his  own 
house,  or  for  words  tending  to  scandalize  the  government, 
or  in  abuse  of  the  officers  of  justice,  especially  in  the  execu- 
tion of  their  office.  Thus  also  a  justice  may  bind  over  all 
night-walkers,  eaves-droppers,  such  as  keep  suspicious  Com- 
pany or  are  reported  to  be  pilferers  or  robbers,  such  as 
sleep  in  the  day  and  wake  in  the  night,  common  drunkards, 
wlioremasters,  the  putative  fathers  of  bastards,  cheats,  idle 
vagabonds,  and  other  persons  whose  misbehavior  may  rea- 
sonably bring  them  within  the  general  words  of  the  statutes, 
as  jjersons  not  of  good  fame,  —  an  expression,  it  must  be 
owned,  of  so  great  a  latitude  as  leaves  much  to  be  deter- 
mined by  the  discretion  of  the  magistrate  himself.  But  if 
lie  commits  a  man  for  want  of  sureties,  he  must  express  the 
cause  thereof  wdtli  convenient  certainty,  and  take  care  that 
such  cause  be  a  good  one. 

2.  A  recognizance  for  the  good  behavior  may  be  forfeited 
by  all  the  same  means  as  one  for  the  security  of  the  peace 
may  be,  and  also  by  some  others  [257],  —  as  by  going  armed 
with  unusual  attendance  to  the  terror  of  the  people,  by 
speaking  words  tending  to  sedition,  or  by  committing  any 
of  those  acts  of  misbehavior  which  the  recognizance  was 
intended  to  prevent.  But  not  by  barely  giving  fresh  cause 
of  suspicion  of  that  which  perhaps  may  never  actually  hap- 
pen; for  though  it  is  just  to  compel  suspected  persons  to 
give  security  to  the  public  against  misbehavior  that  is 
apprehended,  yet  it  would  be  hard  upon  such  suspicion, 
without  the  proof  of  any  actual  crime,  to  punish  them  by 
a  forfeiture  of  their  recognizance;. 


Chap.  XIX.]     Courts  of  Criminal  Jurisdiction.  737 

CHAPTER  XIX. 

of  courts  of  criminal,  jurisdiction. 

1.  The  High  Court  of  Parliament  is  the  supreme  court 
in  the  kingdom,  not  only  for  the  making,  but  also  for  the 
execution  of  laws,  by  the  trial  of  great  and  enormous  offen- 
ders, whether  lords  or  commoners,  in  the  method  of  parlia- 
mentary impeachment.  [259]  An  impeachment  before  the 
Lords  by  the  Commons  of  Great  Britain,  in  parliament,  is  a 
prosecution  of  the  already  known  and  established  law,  being 
a  presentment  to  the  most  high  and  supreme  court  of  crimi- 
nal jurisdiction  by  the  most  solemn  grand  inquest  of  the 
whole  kingdom.  A  commoner  cannot,  however,  be  im- 
peached before  the  Lords  for  any  capital  offence,^  but  only 
for  high  misdemeanors;  a  peer  may  be  impeached  for  any 
■crime,^  [260]  And  they  usually  (in  case  of  an  impeach- 
ment of  a  peer  for  treason)  address  the  crown  to  appoint  a 
lord  high  steward  for  the  greater  dignity  and  regularity 
of  their  proceedings,  which  high  steward  was  formerly 
elected  by  the  peers  themselves,  though  he  was  generally 
commissioned  by  the  king;  but  it  hath  of  late  years  been 
strenuously  maintained  that  the  appointment  of  an  high 
steward  in  such  cases  is  not  indispensably  necessary,  but 
that  the  House  may  proceed  without  one.  [260]  The  arti- 
cles of  impeachment  are  a  kind  of  bills  of  indictment  found 
by  the  House  of  Commons,  and  afterwards  tried  by  the 
Lords,  who  are  in  cases  of  misdemeanors  considered  not 
only  as  their  own  peers,  but  as  the  peers  of  the  whole  nation. 

1.  See,  however,  14  Lord's  Journ.,  and  to  this  effect  are  all  these  stat- 
p.  260.  utes,  viz.,  32  H.  VIII.,  c.  4,  Rastall 

2.  For  misdemeanors,  as  libels,  404,  pi.  10;  33  H.  VIII.,  e.  12,  Ras- 
riots,  etc.,  peers  are  to  be  tried,  like  tall  415;  35  H.  VIII.,  c.  2,  Rastall 
commoners,  by  a  jury,  for,  "at  the  -416:  and  in  all  these  express  mention 
common  law,  in  these  four  cases  only,  is  made  of  trial  by  peers.  But  in  this 
a  peer  shall  be  tried  by  his  peers,  viz.,  case  of  a  praemunire,  the  same  bein^ 
in  treason,  felony,  misprision  of  trea-  only  in  effect  but  a  contempt,  no  trial 
son,  and  misprision  of  felony;  and  the  shall  be  here  in  this  of  a  peer  by  his 
statute  law  which  gives  such  trial,  peers."  Per  Fleming,  C.  J.,  assented 
hath  reference  unto  these,  or  to  other  to  by  the  wliole  court,  in  Rex  v.  Lord 
offences  made  treason  or  felony:    his  Vaux,  1  Bulstr.  197. 

trial  by  his  peer«  shall  be  as  before; 

i47 


738  Courts  of  Criminal  Jurisdiction.       [Book  IV. 

2.  The  Court  of  the  Lord  High  Steward  of  Great  Britain 
is  a  court  instituted  for  the  trial  of  peers  indicted  for  trea- 
son or  felony,  or  for  misprision  of  either.  [261]  When 
such  an  indictment  is  therefore  found  by  a  grand  jury  of 
freeholders  in  the  King 's  Bench,  or  at  the  assises  before  the 
justices  of  oyer  and  terminer,  it  is  to  be  removed  by  a  writ 
of  certiorari  into  the  Court  of  the  Lord  High  Steward,  which 
only  has  power  to  determine  it.  [262]  During  the  session  of 
parliament  the  trial  of  an  indicted  peer  is  not  properly  in 
the  Court  of  the  Lord  High  Steward,  but  before  the  court  last 
mentioned,  of  our  lord  the  king  in  parliament.   [263] 

3.  The  Court  of  Kings's  Bench  is  divided  into  a  crown 
side  and  a  plea  side.  [265]  And  on  the  crown  side,  or 
crown  office,  it  takes  cognizance  of  all  criminal  causes,  from 
high  treason  down  to  the  most  trivial  misdemeanor  or 
breach  of  the  peace.  Into  this  court  also  indictments  from 
all  inferior  courts  may  be  removed  by  writ  of  certiorari, 
and  tried  either  at  bar  or  at  nisi  prius  by  a  jury  of  the 
county  out  of  which  the  indictment  is  brought. 

4.  The  Court  of  ClUTalry  is  also  a  criminal  court  when  held  before  the 
lord  high  constable  of  England  jointly  with  the  earl  marshal.  And  then 
it  has  jurisdiction  over  pleas  of  life  and  member,  arising  in  matters  of 
arms  and  deeds  of  war,  as  well  out  of  the  realm  as  within  it.   [Obsolete.] 

5.  The  High  Court  of  Admiralty,^  held  before  the  Lord 
High  Admiral  of  England  or  his  deputy,  styled  the  Judge 
of  the  Admiralty,  is  not  only  a  court  of  civil,  but  also  of 
criminal  jurisdiction.  [268]  This  court  hath  cognizance  of 
all  crimes  and  offences  committed  either  upon  the  sea  or 
on  the  coasts,  out  of  the  body  or  extent  of  any  English 
county;  and  by  statute  15  Ric.  IL  c.  3,  of  death  and  mayhem 
happening  in  great  ships  being  and  hovering  in  the  main 
stream  of  great  rivers,  below  the  bridges  of  the  same  rivers,, 
which  are  then  a  sort  of  ports  or  havens,  such  as  are  the 
ports  of  London  and  Gloucester,  though  they  lie  at  a  great 
distance  from  the  sea.  But  as  this  court  proceeded  without 
jury  in  a  method  much  conformed  to  the  civil  law,  the  exer- 

3.  See,  generally,  3  Broom  &  Had-  Courts.    Const.  U.  S.,  art.  3,  §  2.   See, 

ley's  Com.,  ch.  16  and  notes.  generally,   Benedict's   Admiralty,   4tb 

This  jurisdiction  in  this  country  is  Ed.  1910.     Also  ante,  and  note, 
vested  in  the  United  Statuo  District 


Chap.  XIX.]     Courts  of  Criminal  Jurisdiction.  739 

cise  of  a  criminal  jurisdiction  there  was  contrary  to  the 
genius  of  the  law  of  England.  And  by  the  statute  28  Hen. 
VIII.  c.  15,  it  was  enacted  that  these  offences  should  be  tried 
by  commissioners  of  oyer  and  terminer,  under  the  king's 
Great  Seal,  namely,  the  admiral  or  his  deputy,  and  three 
or  four  more  (among  whom  two  common  law  judges  are 
usually  appointed);  the  indictment  being  first  found  by  a 
grand  jury  of^twelve  men,  and  afterwards  tried  by  a  petty 
jury;  and  that  the  course  of  proceedings  should  be  accord- 
ing to  the  law  of  the  land.  [269]  This  is  now  the  only 
method  of  trying  marine  felonies  in  the  Court  of  Admiralty, 
the  Judge  of  the  Admiralty  still  presiding  therein,  as  the 
Lord  Mayor  is  the  president  of  the  session  of  oyer  and 
terininer  in  London. 

These  five  courts  may  be  held  in  any  part  of  the  king- 
dom, and  their  jurisdiction  extends  over  crimes  that  arise 
throughout  the  whole  of  it,  from  one  end  to  the  other. 
What  follow  are  also  of  a  general  nature,  and  universally 
diffused  over  the  nation,  but  yet  are  of  a  local  jurisdiction 
and  confined  to  particular  districts.  Of  which  species 
are,  — 

6,  7.  The  courts  of  oyer  and  terminer,  and  the  general 
gaol  delivery,^  which  are  held  before  the  king's  commis- 
sioners, among  whom  are  usually  two  judges  of  the  courts 
at  Westminster,  twice  in  every  year  in  every  county  of  the 
kingdom,  except  the  four  northern  ones,  where  they  are 
held  only  once,  and  London  and  Middlesex,  wherein  they 
are  held  eight  times.  These  were  slightly  mentioned  in 
the  preceding  book.  We  then  observed  that  at  what  is 
usually  called  the  assises  the  judges  sit  by  virtue  of  five 
several  authorities,  the  fourth  of  which  is  the  commission  of 

4.  In  the  federal  system  the  United  law    jurisdiction.      In    some    of    the 

States  District  Court  has  original  ju-  states,    however    (as    well    as    in    the 

risdiction   of  all   criminal   cases  aris-  United  States),  no  act  is  a  crime  un- 

ing  under  the  United  States  statutes,  less   declared  to   be  such  by   statute, 

for  there  are  no  common  law   crimes  Key  v.  Vatler,  1  Ohio,  132;  Rev.  Stat, 

against    the    United    States.      Wash.  Ind.  1852,  p.  352;   id.,  1876   (Davis), 

Crim.  I^w    (3d  Ed.),  10,  265.  p.  606;  Marvin  v.  Stato,  19  Ind.  181; 

In   the   several   states   criminal   ju-  State  v.   Torrey,    55   Kan.   347.     The 

risdiction   is  exercised  by  circuit,  dis-  common   law,    however,    furnishes    aid 

trict.    fommon    pleas   or   other    corre-  in   defining  the   terms   used.     Ledger- 

sponding    courts    of   gens  ral    common  wood  v.   State,   134  Ind.  81. 


TiO  COUETS  OF    CeiMHSTAL   JURISDICTION.  [BoOK  IV. 

oyer  and  terminer,  to  hear  and  determine  all  treasons,  fel- 
onies, and  misdemeanors.  [270] 

8.  The  court  of  general  quarter  sessions  of  the  peace  is. 
a  court  that  must  be  held  in  every  county  once  in  every 
quarter  of  a  year.  [271]  It  is  held  before  two  or  more 
justices  of  the  peace,  one  of  which  must  be  of  the  quorum. 
The  jurisdiction  of  this  court,  by  statute  34  Edw.  III.  c.  1, 
extends  to  the  trying  and  determining  all  felgnies  and  tres- 
passes whatsoever,  though  they  seldom,  if  ever,  try  any 
greater  offence  than  small  felonies  within  the  benefit  of 
clergy,  their  commission  providing  that  if  any  case  of  diffi- 
culty arises  they  shall  not  proceed  to  judgment,  but  in  the 
presence  of  one  of  the  justices  of  the  Court  of  King's 
Bench  or  Common  Pleas,  or  one  of  the  judges  of  assise. 
And  therefore  murders  and  other  capital  felonies  are  usu- 
ally remitted  for  a  more  solemn  trial  to  the. assises. 

9.  The  sheriff's  tourn,  or  rotation,  is  a  court  of  record  held  twice  every 
year,  within  a  month  after  Easter  and  Michaelmas,  before  the  sheriff,  in 
different  parts  of  the  county,  being  indeed  only  the  turn  of  the  sheriff  to 
keep  a  court-leet  in  each  respective  hundred;  this,  therefore,  is  the  great 
court-leet  of  the  county,  as  the  county-court  is  the  court-baron,  for  out  of 
this,  for  the  ease  of  the  sheriff,  was  it  taken.   [273] 

10.  The  court-leet,  or  view  of  frankpledge,  which  is  a  court  of  record  held 
once  in  the  year  and  not  oftener,  within  a  particular  hundred,  lordship,  or 
manor,  before  the  steward  of  the  leet,  being  the  king's  court  granted  by 
charter  to  the  lords  of  those  hundreds  or  manors.  Its  original  intent  was  to 
view  the  frankpledges,  that  is,  the  freemen  within  the  liberty,  who,  according 
to  the  institution  of  the  Great  Alfred  were  all  mutually  pledges  for  the  good 
behavior  of  each  other.  Besides  this  the  preservation  of  the  peace  and  the 
chastisement  of  divers  minute  offences  against  the  public  good  are  the  objects 
both  of  the  court-leet  and  the  sheriff's  tourn,  which  have  exactly  the  same 
jurisdiction,  one  being  only  a  larger  species  of  the  other,  extending  over  more 
territory,  but  not  over  more  causes. 

11.  The  court  of  the  coroners  is  also  a  court  of  record,  to 
inquire,  when  any  one  dies  in  prison  or  comes  to  a  violent 
or  sudden  death,  by  what  manner  he  came  to  his  end  [274] ; 
and  this  he  is  only  entitled  to  do  super  visum  corporis.^ 

12.  Tlie  court  of  the  clerk  of  the  market  is  incident  to  every  fair  and 
market  in  the  kingdom  to  punish  misdemeanors  therein,  as  a  court  of 
pie  pondre  is  to  determine  all  disputes  relating  to  private  or  civil  prop- 
erty. [275] 

5.  Upon  the  view  of  the  body.    See   ante,  Book  1. 


Cjiap.  XX.]  Of  Summary  Convictions.  741 

CHAPTER  XX. 

OF  SUMMARY  CONVICTIONS.* 

By  a  summary  proceeding  I  mean  principally  such  as  is 
directed  by  several  acts  of  parliament  (for  the  common  law 
is  a  stranger  to  it,  unless  in  the  case  of  contempts)  for  the 
conviction  of  offenders  and  the  inflicting  of  certain  penal- 
ties created  by  those  acts  of  parliament.  [280]  In  these 
there  is  no  intervention  of  a  jury,  but  the  party  accused  is 
acquitted  or  condemned  by  the  suffrage  of  such  person  only 
as  the  statute  has  appointed  for  his  judge. 

I.  Of  this  summary  nature  are  all  trials  of  offences  and 
frauds  contrary  to  the  laws  of  the  excise,  and  other 
branches  of  the  revenue^  which  are  to  be  inquired  into  and 
determined  by  the  commissioners  of  the  respective  de- 
partments, or  by  justices  of  the  peace  in  the  country.  [281] 

II.  Another  branch  of  summary  proceedings  is  that  be- 
fore justices  of  the  peace,  in  order  to  inflict  divers  petty 
pecuniary  mulcts  and  corporal  penalties  denounced  by  act 
of  parliament  for  many  disorderly  offences;  such  as  common 
swearing,  drunkenness,  vagrancy,  idleness,  and  a  vast 
variety  of  others,  for  which  I  must  refer  the  student  to 
the  justice-books  formerly  cited  (Lombard  and  Burn),  and 
which  were  formerly  punished  by  the  verdict  of  a  jury  in 
the  court-leet.^ 

The  process  of  these  summary  convictions  is  extremely 
speedy;  though  the  courts  of  common  law  have  thrown  in 
one  check  upon  them,  by  making  it  necessary  to  summon 
the  party  accused  before  he  is  condemned.  [283]  After 
this  summons  the  magistrate  in  summary  proceedings  may 
go  on  to  examine  one  or  more  )vitnesses,  as  the  statute  may 
require,  upon  oath,  and  then  make  his  conviction  of  the 

1.  Charges  of  vagrancy   and   disor-  stitution  cannot  subsequentlj'  be  made 

derly  conduct  were   never   triable   by  triable  without  jury.    Miller  v.  Com., 

jury.      State   v.    Glenn,    54   Md.    572.  88  Va.  618.     See,  generally,   Cooley's 

And    petty    oflFences    need    not   be    so  Const.  Lira.   (7th  Ed.),  453,  454,  note, 
tried.      Ex    parte    Wooten,    62    Miss.  2.  With  us  this  lies  within  federal 

174;  Inwood  v.  State,  42  Ohio  St.  186.  cognizance. 

But  an  offence  triable  by  jury  at         3.  See  ante,  note, 
the  time  of  the  adoption  of  the  oon-  ^ 


742  Of  Summaby  Conviotioxs.  [Book  IV. 

offender  in  writing,  upon  which  he  usually  issues  his  war- 
rant either  to  apprehend  the  offender,  in  case  corporal  pun- 
ishment is  to  be  inflicted  on  him,  or  else  to  levy  the  penalty 
incurred  by  distress  and  sale  of  his  goods. 

III.  To  this  head  of  summary  proceedings  may  also  be 
properly  referred  the  method,  immemorially  used  by  the 
superior  courts  of  justice,  of  punishing  contempts  by  at- 
tachment, and  the  subsequent  proceedings  thereon. 

The  contempts  that  are  thus  punished  are  either  direct, 
which  openly  insult  or  resist  the  powers  of  the  courts  or 
the  persons  of  the  judges  who  preside  there,  or  else  are 
consequential,  which  (without  such  gross  insolence  or  di- 
rect opposition)  plainly  tend  to  create  an  universal  disre- 
gard of  their  authority.  [284]  The  principal  instances  of 
either  sort  that  have  been  usually  punishable  by  attach- 
ment are  chiefly  of  the  following  kinds :  —  1.  Those  com- 
mitted by  inferior  judges  and  magistrates,  by  acting  un- 
justly, oppressively,  or  irregularly  in  administering  those 
portions  of  justice  which  are  intrusted  to  their  distribution, 
or  by  disobeying  the  king's  writs  issuing  out  of  the  superior 
courts,  by  proceeding  in  a  cause  after  it  is  put  a  stop  to 
or  removed  by  writ  of  prohibition,  certiorari;,  error,  super- 
sedeas, and  the  like.  2.  Those  committed  by  sheriffs,  bail- 
iffs, gaolers,  and  other  officers  of  the  court,  by  abusing  the 
process  of  the  law,  or  deceiving  the  parties  by  any  acts  of 
oppression,  extortion,  collusive  behavior,  or  culpable  neg- 
lect of  duty.  3.  Those  committed  by  attorneys  and  solici- 
tors, who  are  also  officers  of  the  respective  courts,  by  gross 
instances  of  fraud  and  corruption,  injustice  to  their  clients, 
or  other  dishonest  practice.  4.  Those  committed  by  jury- 
men in  collateral  matters  relating  to  the  discharge  of  their 
office,  such  as  making  default  when  summoned,  refusing  to 
be  sworn  or  to  give  any  verdict,  eating  or  drinking  without 
the  leave  of  the  court,  and  especially  at  the  cost  of  either 
party,  and  other  misbehavior  or  irregularities  of  a  similar 
kind,  but  not  in  mere  exercise  of  their  judicial  capacities, 
as  by  giving  a  false  or  erroneous  verdict.  5.  Those  com- 
mitted by  witnesses,  by  making  default  when  summoned, 
refusing  to  be  sworn  or  examined,  or  prevaricating  in  their 
evidence  when  sworn.    6.  Those  committed  by  parties  to 


Chap.  XX.]  Of  Summary  Convictions.  743 

any  suit  or  proceeding  before  the  court,  as  by  disobedience 
to  any  rule  or  order  made  in  the  progress  of  a  cause,  by 
non-payment  of  costs  awarded  by  the  court  upon  a  motion, 
or  by  non-observance  of  awards  duly  made  by  arbitrators 
or  umpires  after  having  entered  into  a  rule  for  submitting 
to  such  determination.  [285]  Indeed  the  attachment  for 
most  of  this  species  of  contempts,  and  especially  for  non- 
payment of  costs  and  non-performance  of  awards,  is  to  be 
looked  upon  rather  as  a  civil  execution  for  the  benefit  of 
the  injured  party,  though  carried  on  in  the  shape  of  a  crimi- 
nal process  for  a  contempt  of  the  authority  of  the  court. 
And  therefore  it  hath  been  held  that  such  contempts,  and 
the  process  thereon,  being  properly  the  civil  remedy  of  indi- 
viduals for  a  private  injury,  are  not  released  or  affected 
by  the  general  act  of  pardon.  7.  Those  committed  by  any 
other  persons  under  the  degree  of  a  peer,  and  even  by 
peers  themselves,  when  enormous  and  accompanied  with 
violence,  such  as  forcible  rescous  and  the  like,  or  when  they 
import  a  disobedience  to  the  king 's  great  prerogative  writs 
of  prohibition,  habeas  corpus,  and  the  rest.  Some  of  these 
contempts  may  arise  in  the  face  of  the  court,  as  by  rude 
and  contumelious  behavior,  by  obstinacy,  perverseness,  or 
prevarication;  by  breach  of  the  peace  or  any  wilful  disturb- 
ance whatever;  others  in  the  absence  of  the  party,  as  by 
disobeying  or  treating  with  disrespect  the  king's  writ  or  the 
rules  or  process  of  the  court;  by  perverting  such  writ  or 
process  to  the  purposes  of  private  malice,  extortion,  or  in- 
justice; by  speaking  or  writing  contemptuously  of  the 
coilrt  or  judges  acting  in  their  judicial  capacity;  by  printing 
false  accounts  (or  even  true  ones  without  proper  permis- 
sion) of  causes  then  depending  in  judgment;  and  by  any- 
thing, in  short,  that  demonstrates  a  gross  want  of  that  re- 
gard and  respect,  which  when  once  courts  of  justice  are 
deprived  of,  their  authority  (so  necessary  for  the  good 
order  of  the  kingdom)  is  entirely  lost  among  the  people. 

If  the  contempt*  be  committed  in  the  face  of  the  court, 
the  offender  may  be  instantly  apprehended  and  imprisoned, 

4.  The  subject  of  contempt  has  al-      notes;      Cooley's    Const.     Lim.      (7th 
ready     been     considered    ante.       See      Ed.),  453,  note. 
Wasli.  Crim.  Law   (3d  Ed.),  246  and 


744  Of  Summary  Convictioxs.  [Book  IV, 

at  the  discretion  of  the  judges,  without  any  further  proof 
or  examination.  [286]  But  in  matters  that  arise  at  a  dis- 
tance, and  of  which  the  court  cannot  have  so  perfect  a 
knowledge,  unless  by  the  confession  of  the  party  or  the 
testimony  of  others,  if  the  judges  upon  affidavit  see  suffi- 
cient ground  to  suspect  that  a  contempt  has  been  commit- 
ted, they  either  make  a  rule  on  the  suspected  party  to 
show  cause  why  an  attachment  should  not  issue  against 
him,  or,  in  very  flagrant  instances  of  contempt,  the  attach- 
ment issues  in  the  first  instance,  as  it  also  does  if  no  suffi- 
cient cause  be  shown  to  discharge,  and  thereupon  the  court 
confirms  and  makes  absolute  the  original  rule.^  [287] 
This  process  of  attachment  is  merely  intended  to  bring  the 
party  into  court,  and  when  there  he  must  either  stand  com- 
mitted or  put  in  bail  in  order  to  answer  upon  oath  to  such 
interrogatories  as  shall  be  administered  to  him  for  the 
better  information  of  the  court  with  respect  to  the  circum- 
stances of  the  contempt.  These  interrogatories  are  in  the 
nature  of  a  charge  or  accusation,  and  must  by  the  course  of 
the  court  be  exhibited  within  the  first  four  days,  and  if  any 
of  the  interrogatories  are  improper  the  defendant  may 
refuse  to  answer  it  and  move  the  court  to  have  it  struck 
out.  If  the  party  can  clear  himself  upon  oath,  he  is  dis- 
charged, but  if  perjured,  may  be  prosecuted  for  the  per- 
jury. If  he  confesses  the  contempt,  the  court  will  proceed 
to  correct  him  by  fine  or  imprisonment,  or  both,  and  some- 
times by  a  corporal  or  infamous  punishment.  If  the  con- 
tempt be  of  such  nature  that,  when  the  fact  is  once  ac- 
knowledged, the  court  can  receive  no  further  information 
by  interrogatories  than  it  is  already  possessed  of  (as  in  the 
case  of  a  rescous),  the  defendant  may  be  admitted  to  make 
such  simple  acknowledgment,  and  receive  his  judgment 
without  answering  to  any  interrogatories;  but  if  he  wilfully 
and  obstinately  refuses  to  answer,  or  answers  in  an  evasive 
manner,  he  is  then  clearly  guilty  of  a  high  and  repeated 
contempt,  to  be  punished  at  the  discretion  of  the  court. 

5.  Tlie  attachment  in  such   case   is  tempt.     Ex  parte  Petrie,  38  111.  498; 

merely  a  process  to  bring  the  defend-  Potrie  v.  People,  4  id.  334;  Ex  parte 

ant  before  the  court  to  show  cause  why  Langden,  25  Vt.   682. 
he  should  not  be  punished  for  a  con- 


Chap.  XXI.]  Of  Aekests.  745 


CHAPTER  XXI. 

OF  ARRESTS. 

An  arrest  is  the  apprehending  or  restraining  of  one's 
person  in  order  to  be  forthcoming  to  answer  "an  alleged 
or  suspected  crime.  [289]  To  this  arrest  all  persons  what- 
soever are,  without  distinction,  equally  liable  in  all  criminal 
cases ;  but  no  man  is  to  be  arrested  unless  charged  with  such 
a  crime  as  will  at  least  justify  holding  him  to  bail  when 
taken.  And  in  general  an  arrest  may  be  made  four  ways: 
1.  By  warrant;  2.  By  an  officer  without  warrant;  3.  By  a 
private  person  also  without  a  warrant;  4.  By  an  hue  and 
cry. 

1.  A  warrant  may  be  granted  in  extraordinary  cases  by 
the  Privy  Council  or  Secretaries  of  State,  but  ordinarily  by 
justices  of  the  peace.^  [290]  This  they  may  do  in  any 
€ases  where  they  have  a  jurisdiction  over  the  offence,  in 
order  to  compel  the  person  accused  to  appear  before  them. 
And  this  extends  undoubtedly  to  all  treasons,  felonies,  and 
breaches  of  the  peace,  and  also  to  all  such  offences  as  they 
liave  power  to  punish  by  statute.  1.  A  justice  of  the  peace 
hath  power  to  issue  a  warrant  to  apprehend  a  person  ac- 
■cused  of  felony,  though  not  yet  indicted.  2.  He  may  also 
issue  a  warrant  to  apprehend  a  person  suspected  of  felony, 
though  the  original  suspicion  be  not  in  himself,  but  in  the 
party  that  prays  his  warrant,  because  he  is  a  competent 
judge  of  the  probability  offered  to  him  of  such  suspicion. 
But  in  both  cases  it  is  fitting  to  examine  upon  oath  the 
party  requiring  a  warrant,  as  w^ell  to  ascertain  that  there 
is  a  felony  or  other  crime  actually  committed,  without 
which  no  warrant  should  be  granted,  as  also  to  prove 
the  cause  and  probability  of  suspecting  the  party  against 
w^hom  the  warrant  is  prayed.  This  warrant  ought  to  be 
under  the  hand  and  seal  of  the  justice,  should  set  forth  the 

1.  This  is  still  the  ordinary  way  ready  been  indicted.  See  Wash.  Crim. 
<if  instituting  a  criminal  prosecution  Law  (3d  Ed.),  104,  and  the  state 
where  the  party  accused  has  not  al-      statutes. 


746  Of  Akbbsts.  [Book  IV. 

time  and  place  of  making,  and  the  cause  for  which  it  is 
made,  and  should  be  directed  to 'the  constable  or  other  peace 
office  (or,  it  may  be,  to  any  private  person  by  name),  re- 
quiring him  to  bring  the  party  either  generally  before  any 
justice  of  the  peace  for  the  county,  or  only  before  the  jus- 
tice who  granted  it,  the  warrant  in  the  latter  case  being 
called  a  special  warrant.  [291]  A  general  warrant  to  ap- 
prehend all  persons  suspected,  without  naming  or  particu- 
larly describing  any  person  in  special,  is  illegal  and  void 
for  its  uncertainty;  for  it  is  the  duty  of  the  magistrate,  and 
ought  not  to  be  left  to  the  officer,  to  judge  of  the  ground  of 
suspicion.^  And  a  warrant  to  apprehend  all  persons  guilty 
of  a  crime  therein  specified  is  no  legal  warrant,  for  the  point 
upon  which  its  authority  rests  is  a  fact  to  be  decided  on  a 
subsequent  trial,  namely,  whether  the  person  apprehended 
thereupon  be  really  guilty  or  not.  It  is  therefore  in  fact  no 
warrant  at  all,  for  it  will  not  justify  the  officer  who  acts 
under  it.  And  when  a  warrant  is  received  by  the  officer  he 
is  bound  to  execute  it,  so  far  as  the  jurisdiction  of  the 
magistrate  and  himself  extends.  A  warrant  from  the  Chief 
or  other  Justice  of  the  Court  of  King's  Bepch  extends  all 
over  the  kingdom,  and  is  tested  or  dated  England,  not  Oxford- 
shire, Berks,  or  other  particular  county.  But  the  warrant 
of  a  justice  of  the  peace  in  one  county,  as  Yorkshire,  must 
be  backed  —  that  is,  signed  by  a  justice  of  the  peace  in 
another,  as  Middlesex  —  before  it  can  be  executed  there. 
[292]  Formerly,  regularly  speaking,  there  ought  to  have 
been  a  fresh  warrant  in  every  fresh  county;  but  the  practice 
of  backing  warrants  had  long  prevailed  without  law,  and 
was  at  last  authorized  by  statutes  23  Geo.  II.  c.  26,  and 
24  Geo.  II.  c.  55. 
2.  Arrests  by  officers  without  warrant  may  be  executed, 

(1)  By  a  justice  of  the  peace,  who  may  himself  apprehend, 
or  cause  to  be  apprehended,  by  word  only,  any  person  com- 
mitting a  felony  or  breach  of  the  peace  in  his  presence. 

(2)  The  sheriff,  and  (3)  The  coroner  may  apprehend  any 
felon  within  the  county  without  warrant.  (4)  The  con- 
stable, of  whose  office  we  formerly  spoke,  hath  great  orig- 

2.  See    Cooky's    Const.    Lim.    (7th  Ed.),  425  and  notes. 


Chap.  XXI.]  Of  Arrests.  747 

inal  and  inherent  authority  with  regard  to  arrests.  He 
may  without  warrant  arrest  any  one  for  a  breach  of  the 
peace  committed  in  his  view,  and  carry  him  before  a  jus- 
tice of  the  peace.  And  in  case  of  felony  actually  com- 
mitted, or  a  dangerous  wounding  whereby  felony  is  like  to 
ensue,  he  may  upon  probable  suspicion  arrest  the  felon,* 
and  for  that  purpose  is  authorized  (as  upon  a  justice's  war- 
rant) to  break  open  doors,  and  even  to  kill  the  felon  if  he 
cannot  otherwise  be  taken;  and  if  he  or  his  assistants  be 
killed  in  attempting  such  arrests,  it  is  murder  in  all  con- 
cerned. 

(5)  Watchmen,  either  those  appointed  by  the  statute  of  Winchester, 
13  Edw.  I.  c.  4,  to  keep  watch  and  ward  in  all  towns  from  sunsetting  to 
sunrising,  or  such  as  are  mere  assistants  to  the  constable,  may  virtute 
officii  arrest  all  offenders,  and  particularly  night-walkers,*  and  commit 
them  to  custody  till  the  morning. 

3.  Any  private  person  (and  a  fortiori  a  peace  officer)  that 
is  present  when  any  felony  is  committed  is  bound  by  the  law 
to  arrest  the.  felon,  on  pain  of  fine  and  imprisonment  if  he 
escapes  through  the  negligence  of  the  standers-by.  [293] 
And  they  may  justify  breaking  open  the  doors  upon  fol- 
lowing such  felon;  and  if  they  hill  him,  provided  he  cannot 
be  otherwise  taken,  it  is  justifiable,  though  if  they  are  killed 
in  endeavoring  to  make  such  arrest  it  is  murder.  Upon 
probable  suspicion,  also,  a  private  person  may  arrest  the 
felon  or  other  person  so  suspected  [provided  a  felony  has 
actually  been  committed]  .^     But  he  cannot  justify  breaking 

3.  Peace  officers  by  common  law  some  disorderly  or  suspicious  act. 
have  much  greater  authority  to  make  Bae.  Abr.  Trespass,  D.  3;  2  Lord 
arrests  without  a  warrant  than  have      Raym.   1301. 

individuals.      "  They    are    held   to   be  5.  "  If   a   felony   has   in    fact    been 

justified   if   they   act   in   making  the  committed  by  the  person  arrested,  the 

arrest  upon   probable  and  reasonable  arrest  may  be  justified  by  any  person 

grounds  for  believing  the  party  guilty  without  a  warrant  whether  there  is 

of  a  felony.    Rohan  v.  Sawin,  5  Cush.  time  to  obtain  one  or  not;  but  if  no 

285.  felony  was  committed  by  any  one  and 

4.  But  at  common  law  no  peace  a  private  individual  arrest  without 
officer  is  justified  in  taking  up  a  warrant  such  arrest  is  illegal,  though 
night-walker  unless  he  has  committed,  an    officer    would   be    justified    if    he 


748  Of  Arrests.  [Book  IV. 

open  doors  to  do  it ;  and  if  either  party  kill  the  other  in  the 
attempt,  it  is  manslaughter,  and  no  more.  It  is  no  more, 
because  there  is  no  malicious  design  to  kill ;  but  it  amounts 
to  so  much,  because  it  would  be  of  most  pernicious  conse- 
quence if,  under  pretence  of  suspecting  felony,  any  private 
person  might  break  open  a  house  or  kill  another,  and  also 
because  such  arrest  upon  suspicion  is  barely  permitted 
by  the  law,  and  not  enjoined,  as  in  the  case  of  those  who 
are  present  when  a  felony  is  committed. 

4.  There  is  yet  another  species  of  arrest,  wherein  both  officers  and 
private  men  are  concerned,  and  that  is  upon  an  hae  and  cry  raised  upon 
a  felony  committed.  [See  Crim.  Code  of  111.  §  339.]  An  hue  (from  huer, 
to  shout  and  cry)  hutesium  et  clamor,  is  the  old  common-law  process  of 
pursuing  with  horn  and  with  voice  all  felons  and  such  as  have  danger- 
ously wounded  another.  It  is  also  mentioned  by  statute  Westm.  1,  3 
Edw.  I.  c.  9,  and  4  Edw.  I.  de  officio  coronatoris.  But  the  principal  statute 
relative  to  this  matter  is  that  of  Winchester,  13  Edw.  I.  c.  1  and  4, 
which  directs  that  from  thenceforth  every  county  shall  be  so  well  kept 
that  immediately  upon  robberies  and  felonies  committed  fresh  suit  shall 
be  made  from  town  to  town  and  from  county  to  county,  and  that  hue 
and  cry  shall  be  raised  upon  the  felons,  and  they  that  keep  the  town 
shall  follow  with  hue  and  ory  with  all  the  town  and  the  towns  near;  and 
so  hue  and  cry  shall  be  made  from  town  to  town  until  they  be  taken  and 
delivered  to  the  sheriff.  And  that  such  hue  and  cry  may  more  effectu- 
ally be  made,  the  hundred  is  bound  by  the  same  statute,  cap.  3,  to 
answer  for  all  robberies  therein  committed  unless  they  take  the  felon. 
[294]  [These  statutes  have  been  repealed.]  Hue  and  cry  may  be  raised 
either  by  precept  of  a  justice  of  the  peace,  or  by  a  peace  officer,  or  by 
any  private  man  that  knows  of  a  felony.  The  party  raising  it  must 
acquaint  the  constable  of  the  vill  with  all  the  circumstances  which  he 
knows  of  the  felony  and  the  person  of  the  felon,  and  thereupon  the  con- 
stable is  to  search  his  own  town,  and  raise  all  the  neighboring  vills,  and 
make  pursuit  with  horse  and  foot.-  And  in  the  prosecution  of  such  hue 
and  cry  the  constable  and  his  attendants  have  the  same  powers,  protec- 
tion, and  indemnification  as  if  acting  under  a  warrant  of  a  justice  of  the 
peace.  But  if  a  man  wantonly  or  maliciously  raises  an'  hue  and  cry 
without  cause,  he  shall  be  severly  punished  as  a  disturber  of  the  public 
peace. 

acted  upon  information  from  another  Brooks  v.  Com.,  61  Pa.  358,  eiting 
which    he    had    reason    to    rely    on."      Holly  v.  Mix,  3  Wend.  353. 


Chap.  XXIL]      Of  Commitment  and  Bail.  ^  749 

CHAPTER  XXII. 

OF  COMMITMENT  AND  BAIL. 

When  a  delinquent  is  arrested  by  any  of  the  means  men- 
tioned in  the  preceding  chapter,  he  ought  regularly  to  be 
carried  before  a  justice  of  the  peace.  [296] 

The  justice  before  whom  such  prisoner  is  brought  is 
bound  immediately  to  examine  the  circumstances  of  the 
crime  alleged;  and  to  this  end,  by  statute  2  &  3  Ph.  &  M. 
c.  10,  he  is  to  take  in  writing  the  examination  of  such  pris- 
oner [repealed],  and  the  information  of  those  who  bring 
him.  If  upon  this  inquiry  it  manifestly  appears  that  either 
no  such  crime  w^as  committed  or  that  the  suspicion  enter- 
tained of  the  prisoner  was  wholly  groundless,  in  such  cases 
only  it  is  lawful  totally  to  discharge  him.  Otherwise  he 
must  either  be  committed  to  prison  or  give  bail,  that  is, 
put  in  securities  for  his  appearance  to  answer  the  charge 
against  him.^  This  commitment  therefore  being  only  for 
safe  custody,  wherever  bail  will  answer  the  same  intention 
it  ought  to  be  taken,  as  in  most  of  the  inferior  crimes;  but 
in  felonies  and  other  offences  of  a  capital  nature  no  bail  can 
be  a  security  equivalent  to  the  actual  custody  of  the  per- 
son. [297]  What  the  nature  of  bail  is,  hath  been  shown  in 
the  preceding  book,  viz.,  a  delivery  of  bailment,  of  a  per- 
son to  his  sureties,  upon  their  giving  (together  with  him- 
self) sufficient  security  for  his  appearance,  he  being  sup- 
posed to  continue  in  their  friendly  custody  instead  of  going 
to  gaol^     In  civil  cases  we  have  seen  that  every  defendant 

1.  The  general  method  of  procedure  of  the  examination  where  the  justice 

in   the   several   states,   so    far   as   we  cannot  try   and   determine   the  cause 

have  observed,  is  very  like   that  de-  upon     its     merits,     is     to    determine 

scribed  in  the  text,  except  as  to  the  whether   the  crime  charged   has   been 

examination  of  the  accused.     In  some  committed  and  whether  there  is  prob- 

states  the  accused  may  be  a  witness  able    cause    to    believe    the    accused 

in  his  own  behalf  if  he   so  elects;   he  guilty  of  having  committed  the  same, 

may   be  represented  by  counsel.    The  See,  generally,  as  to  the  proceedings, 

proceedings   on   such   preliminary   ex-  Wash.  Crim.  Law   (3d  Ed.),  112. 

amination  are  very  much  like  a  trial  2.  Clark's  Crim.  Proced.,  83. 
of  the  accused  except  the  only  object 


750  Op  Commitment  and  Bail.    ~         [Book  IV. 

is  bailable,  but  in  criminal  matters  it  is  otliervvise.  Let  us 
therefore  inquire  in  what  cases  the  party  accused  ought,  or 
ought  not,  to  be  admitted  to  bail. 

And  first,  to  refuse  or  delay  to  bail  any  person  bailable, 
is  an  offence  against  the  liberty  of  the  subject,  in  any  mag- 
istrate by  the  common  law,  as  well  as  by  the  statute  Westm. 
1,  3  Edw.  I.  c.  15,  and  the  habeas  corpus  act,  3i  Car.  II.  c.  2. 
And  lest  the  intention  of  the  law  should  be  frustrated  by  the 
justices  requiring  bail  to  a  greater  amount  than  the  nature 
of  the  case  demands,  it  is  expressly  declared  by  statute 
1  W.  &  M.  st.  2,  c.  1,  that  excessive  bail  ought  not  to  be  re- 
quired;^ though  what  bail  should  be  called  excessive  must 
be  left  to  the  courts,  on  considering  the  circumstances  of 
the  case,  to  determine.  And,  on  the  other  hand,  if  the  mag- 
istrate takes  insufficient  bail,  he  is  liable  to  be  fined  if  the 
criminal  doth  not  appear.  Bail  may  be  taken  either  in 
court,  or  in  some  particular  cases  by  the  sheriff,  coroner,  or 
other  magistrate,  but  most  usually  by  the  justices  of  the 
peace.  Regularly,  in  all  offences  either  against  the  com- 
mon law  or  act  of  parliament  that  are  below  felony,  the 
offender  ought  to  be  admitted  to  bail,  unless  it  be  prohibited 
by  some  special  act  of  parliament.'*  [298] 

Let  us  next  see  who  may  not  be  admitted  to  bail,  or  what 
offences  are  not  bailable.  By  the  ancient  common  law,  be- 
fore and  since  the  Conquest,  all  felonies  were  bailable,  till 
murder  was  excepted  by  statute;  so  that  persons  might  be 
admitted  to  bail  before  conviction  almost  in  every  case. 
But  the  statute  Westm.  1,  3  Edw.  I.  c.  15,  takes  away  the 
power  of  bailing  in  treason  and  in  divers  instances  of 
felony.  The  statutes  23  Hen.  VI.  c.  9,  and  1  &  2  Ph.  &  M. 
c.  13,  give  further  regulations  in  this  matter;  and  upon  the 
whole  we  may  collect  that  no  justice  of  the  peace  can  bail, — 
1.  Upon  an  accusation  of  treason;  nor,  2.  Of  murder;  nor, 
3.  In  case  of  manslaughter,  if  the  prisoner  be  clearly  the 
slayer,  and  not  barely  suspected  to  be  so,  or  if  any  indict- 

8.  Clark's  Crim.  Proced.,  88;  Cool-  4.  Id.;    Cooley's   Const.   Lim.    (7th 

ey's  Const.  Lim.    (7th  Ed.),  439;   U.      Ed.),  437. 
S.  Const.  Amend.  8,  and  the  several 
£iate  constitutions. 


Chap.  XXII.]      Of  Commitment  and  Bail.  751 

ment  be  found  against  him;  or,  4.  Such  as,  being  committed 
for  felony,  have  broken  prison,  because  it  not  only  carries 
a  presumption  of  guilt,  but  is  also  superadding  one  felony 
to  another;  5.  Persons  outlawed;  6.  Such  as  have  abjured 
the  realm;  7.  Approvers,  of  whom  we  shall  speak  in  a  subse- 
quent chapter,  and  persons  by  them  accused;  8.  Persons 
taken  with  the  mainor,  or  in  the  fact  of  felony;  9.  Persons 
charged  with  arson;  10.  Excommunicated  persons,  taken  by 
writ  de  excommunicato  capiendo,  all  which  are  clearly  not 
admissible  to  bail  by  the  justice.  [299]  Others  are  of  a 
dubious  nature,  —  as,  11.  Thieves  openly  defamed  and 
known;  12.  Persons  charged  with  other  felonies  or  manifest 
and  enormous  offences,  not  being  of  good  fame ;  and  13.  Ac- 
cessaries to  felony,  that  labor  under  the  same  want  of  repu- 
tation. These  seem  to  be  in  the  discretion  of  the  justices, 
whether  bailable  or  not.  The  last  class  are  such  as  must 
be  bailed  upon  ottering  sufticient  surety,  —  as,  14.  Persons 
of  good  fame,  charged  with  a  bare  suspicion  of  manslaugh- 
ter or  other  inferior  homicide;  15.  Such  persons  being 
charged  with  petit  larceny  or  any  felony  not  before  speci- 
fied; or,  16.  With  being  accessary  to  any  felony.  Lastly, 
it  is  agreed  that  the  Court  of  King's  Bench  (or  any  judge 
thereof  in  time  of  vacation)  may  bail  for  any  crime  what- 
soever,^ be  it  treason,  murder,  or  any  other  offence,  accord- 
ing to  the  circumstances  of  the  case;  except  only,  even  to 
this  high  jurisdiction,  and  of  course  to  all  inferior  ones, 
such  persons  as  are  committed  by  either  house  of  parlia- 
ment so  long  as  the  session  last,  or  such  as  are  committed 
for  contempts  by  any  of  the  king's  superior  courts  of  jus- 
tice.  [300] 

Upon  the  whole,  if  the  offence  be  not  bailable  or  the  party 
cannot  find  bail,  he  is  to  be  committed  to  the  county  gaol 

5.  The  power  to  admit  to  bail  is  a  least   after    indictment    or   when   the 

jiidieial  power.   It  cannot  be  exercised  party  is  charged  by  the  finding  of  a 

Ijy  a  clerk  or  other  ministerial  officer  coroner's  jury.     Cooley's  Const.  Lim. 

nor  can  it  be  delegated,   Clark's  Grim.  (7th  Ed.),  438;  Clark's  Crim.  Proced., 

Proced.,   84.  86.       See     the    United     States     (8th 

In  this  country  capital  offences  are  Amend.)    and  state  constitutions, 
not  generally  regarded  as  bailable;  at 


752  Of  Commitmekt  and  Bail.  [Book  IV. 

by  the  mittimus  of  the  justice,  or  warrant  under  his  hand 
and  seal,  containing  the  cause  of  his  commitment,  there  to 
abide  till  delivered  by  due  course  of  law.®  But  this  im- 
prisonment, as  has  been  said,  is  only  for  safe  custody,  and 
not  for  punishment;  therefore  in  his  dubious  interval  be- 
tween the  commitment  and  trial,  a  prisoner  ought  to  be  used 
with  the  utmost  humanity,  and  neither  be  loaded  with 
needless  fetters  nor  subjected  to  other  hardships  than  such 
as  are  absolutely  requisite  for  the  purpose  of  confinement 
only,  —  though  what  are  so  requisite  must  too  often  be  left 
to  the  discretion  of  the  gaolers.  Yet  the  law  (as  formerly 
held)  [and  so  now  in  this  country]  would  not  justify  them 
in  fettering  a  prisoner,  unless  where  he  was  unruly  or  had 
attempted  to  escape.^ 

6.  See  Clark's  Crim.   Proced.,   100,  7.  Clark's  Crim.  Proced.,  77;  State 

as  to  the  requisites  of  a  mittimus  or      v.  Lewis,  19  ]^an.  260. 
£ommitmcnt. 


Chap.  XXIIL]        Modes  of  Prosecution.  753 

CHAPTER  XXIIL 

OF   THE  SEVERAL  MODES  OF  PROSECUTION. 

The  next  step  toward  the  punishment  of  offenders  is  their 
prosecution,  or  the  manner  of  their  formal  accusation.  [301] 
And  this  is  either  upon  a  previous  finding  of  the  fact  by  an 
inquest  or  grand  jury,  or  without  such  previous  finding. 
The  former  way  is  either  by  presentment  or  indictment. 

I.  A  presentment,  generally  taken,  is  a  very  compre- 
hensive term,  including  not  only  presentments  properly  so 
called,  but  also  inquisitions  of  office,  and  indictments  by  a 
grand  jury.  A  presentment,  properly  speaking,  is  the 
notice  taken  by  a  grand  jury  of  any  offence  from  their  own 
knowledge  or  observation,  without  any  bill  of  indictment 
laid  before  them  at  the  suit  of  the  king,^  —  as  the  present- 
ment of  a  nuisance,  a  libel,  and  the  like,  upon  which  the 
officer  of  the  court  must  afterwards  frame  an  indictment 
before  the  party  presented  can  be  put  to  answer  it.  An 
inquisition  of  oflBce  is  the  act  of  a  jury  sommoned  by  the 
proper  officer  to  inquire  of  matters  relating  to  the  crown 
upon  evidence  laid  before  them.  Some  of  these  are  in  them- 
selves convictions,  and  cannot  afterwards  be  traversed  or 
denied,  and  therefore  the  inquest  or  jury  ought  to  hear  all 
that  can  be  alleged  on  both  sides.  Of  this  nature  are  all 
inquisitions  of  felo  de  se,^  of  flight  in  persons  accused  of 
felony,  of  deodands,  and  the  like,  and  presentments  of  petty 
offences  in  the  sheriff's  tourn  or  court-leet,  whereupon  the 
presiding  officer  may  set  a  fine.  Other  inquisitions  may  be 
afterwards  traversed  and  examined,  as  particularly  the 
coroner's  inquisition  of  the  death  of  a  man,  when  it  finds 
any  one  guilty  of  homicide;  for  in  such  cases  the  offender 
so  presented  must  be  arraigned  upon  this  inquisition,  and 
may  dispute  the  truth  of  it,  which  brings  it  to  a  kind  of 
indictment,  the  most  usual  and  effectual  means  of  prosecu- 
tion, and  into  which  we  will  therefore  inquire  a  little  more 
minutely.  [302] 

1.  Clark's  Crim.  Proced.,  105.  2.  A  suicide. 

48 


754  Modes  of  Pkosecutiox.  [Book  IV. 

n.  An  indictment  is  a  written  accusation  of  one  or  more 
persons  of  a  crime  or  misdemeanor,  preferred  to  and  pre- 
sented upon  oath  by  a  grand  jury.^  To  this  end  the  sheriff 
of  every  county  is  bound  to  return  to  every  session  of  the 
peace,  and  every  commission  of  oyer  and  terminer,  and  of 
general  gaol-delivery,  twenty-four  good  and  lawful  men  of 
the  county,  some  out  of  every  hundred,  to  inquire,  present, 
do,  and  execute  all  those  things  which  on  the  part  of  our 
lord  the  king  shall  then  and  there  be  commanded  them. 
As  many  as  appear  upon  this  panel  are  sworn  upon  the 
grand  jury,  to.  the  amount  of  twelve  at  the  least,'  and  not 
more  than  twenty-three;*  that  twelve  may  be  a  majority. 
This  grand  jury  are  previously  instructed  in  the  articles  of 
their  inquiry  by  a  charge  from  the  judge  who  presides  upon 
the  bench.  [303]  They  then  withdraw,  to  sit  and  receive 
indictments,  which  are  preferred  to  them  in  the  name  of 
the  king,  but  at  the  suit  of  any  private  prosecutor.  •  And 
they  are  only  to  hear  evidence  on  behalf  of  the  prosecution ; 
for  the  finding  of  an  indictment  is  only  in  the  nature  of  an 
inquiry  or  accusation,  which  is  afterwards  to  be  tried  and 
determined,  and  the  grand  jury  are  only  to  inquire  upon 
their  oaths  whether  there  be  sufficient  cause  to  call  upon 
the  party  to  answer  it.  A  grand  jury,  however,  ought  to  be 
thoroughly  persuaded  of  the  truth  of  an  indictment  so  far 
as  their  evidence  goes,  and  not  to  rest  satisfied  merely  with 
remote  probabilities. 

The  grand  jury  are  sworn  to  inquire  only  for  the  body 
of  the  county,  pro  corpore  comitatus;  and  therefore  they 
cannot  regularly  inquire  of  a  fact  done  out  of  that  county 
for  which  they  are  sworn,  unless  particularly  enabled  by 
an  act  of  parliament.  And  to  so  high  a  nicety  was  this 
matter  anciently  carried,  that  where  a  man  was  wounded  in 
one  county  and  died  in  another,  the  offender  was  at  common 
law  indictable  in  neither,  because  no  complete  act  of  felony 

3.  Clark's   Grim.   Proced.,    105.  procedure  is  very  similar  to  that  de- 

4.  The  majiner  of  selecting  and  scribed  by  the  author.  See  Rev.  Stat, 
summoning  a  grand  jury  is  in  this  111.  (Starr  &,  Curtis),  p.  'ISSS,  §  588, 
country  always,  so  far  as  we  know,  p.  2388,  §  9;  Clark's  Crim.  Proced., 
regulated   by   statute.      The   general  109;  Wash.  Crim.  Law  (3d  Ed.),  120. 


Ohap.  XXIIL]        Modes  of  Prosecution.  755 

was  done  in  any  one  of  them;  but  by  statute  2  &  3  Edw.  VI. 
c.  24,  he  is  now  indictable  in  the  county  where  the  party 
died.  And  by  statute  2  Geo.  EE.  c.  21,  if  the  stroke  or 
poisoning  be  in  England,  and  the  death  upon  the  sea  or  out 
of  England,  or  vice  versa,  the  offenders  and  their  accessaries 
may  be  indicted  in  the  county  where  either  the  death,  poison- 
ing, or  stroke  shall  happen.  And  so  in  some  other  cases, 
as  particularly  where  treason  is  committed  out  of  the  realm, 
it  may  be  inquired  of  in  any  county  within  the  realm,  as 
the  king  shall  direct,  in  pursuance  of  statutes  26  Hen.  VIII. 
c.  13;  33  Hen.  VIII.  c.  23;  35  Hen.  VIII.  c.  2;  and  5  &  6  Edw. 
VI.  c.  11.  But  in  general  all  offences  must  be  inquired  into 
as  well  as  tried  in  the  county  where  the  fact  is  committed. 
[305]  Yet  if  larceny  be  committed  in  one  county  and  the 
goods  carried  into  another,  the  offender  may  be  indicted  in 
either,  for  the  offence  is  complete  in  both.  Or  he  may  be 
indicted  in  England  for  larceny  in  Scotland,  and  carrying 
the  goods  with  him  into  England,  or  vice  versa;  or  for  re- 
ceiving in  one  part  of  the  United  Kingdom  goods  that  have 
been  stolen  in  another.  But  for  robbery,  burglary,  and  the 
like,  he  can  only  be  indicted  where  the  fact  was  actually 
committed;  for  though  the  carrying  away  and  keeping  of 
the  goods  is  a  continuation  of  the  original  taking,  and  is 
therefore  larceny  in  the  second  county,  yet  it  is  not  a  rob- 
bery or  burglary  in  that  jurisdiction. 

When  the  grand  jury  have  heard  the  evidence,  if  they 
think  it  a  groundless  accusation,  they  used  formerly  to  in- 
dorse on  the  back  of  the  bill,  ^'ignoramus/'  or  we  know 
nothing  of  it;  intimating  that  though  the  facts  might  pos- 
sibly be  true,  that  truth  did  not  appear  to  them.  But  now 
they  assert  in  England  more  absolutely,  "  not  a  true  bill,'* 
or  (which  is  the  better  way)  "  not  found,"  and  then  the 
party  is  discharged  without  further  answer;  but  a  fresh 
bill  may  afterwards  be  preferred  to  a  subsequent  grand 
jury.  If  they  are  satisfied  of  the  truth  of  the  accusation 
they  then  indorse  upon  it,  "a  true  bill,"  anciently,  ''billa 
vera."  [306]  The  indictment  is  then  said  to  be  found,  and 
the  party  stands  indicted.    But  to  find  a  bill  there  must  at 


T56  '"      Modes  of  Prosecution.  [Book  IV. 

least  twelve  of  the  jury  agree,''  for  so  tender  is  the  law  of 
England  of  the  lives  of  the  subjects,  that  no  man  can  be 
convicted  at  the  suit  of  the  king  of  any  capital  offence  un- 
less by  the  unanimous  voice  of  twenty-four  of  his  equals 
and  neighbors;  that  is,  by  twelve  at  least  of  the  grand  jury, 
in  the  first  place,  assenting  to  the  accusation,  and  after- 
wards by  the  whole  petit  jury,  of  twelve  more,  finding  him 
guilty  upon  his  trial.  But  if  twelve  of  the  grand  jury 
assent,  it  is  a  good  presentment,  though  some  of  the  rest 
disagree.  And  the  indictment  when  so  found  is  publicly 
delivered  into  court.*' 

Indictments  must  have  a  precise  and  sufficient  certainty. 
By  statute  1  Hen.  V.  c.  5,  all  indictments  must  set  forth  the 
Christian  name,  surname,  and  addition  of  the  state,  and 
degree,  mystery,  town  or  place,  and  the  county^  of  the 
offender;  and  all  this  to  identify  his  person.  The  time  and 
place  are  also  to  be  ascertained  by  naming  the  day  and 
township  in  which  the  fact  was  committed;  though  a  mis- 
take in  these  points  is  in  general  not  held  to  be  material, 
provided  the  time  be  laid  previous  to  the  finding  of  the  indict- 
ment, and  the  place  to  be  within, the  jurisdiction  of  the  court, 
unless  where  the  place  is  laid  not  merely  as  a  venue,  but  as 
part  of  the  description  of  the  fact.  But  sometimes  the  time 
may  be  very  material,  where  there  is  any  limitation  in  point 
of  time  assigned  for  the  prosecution  of  offenders;  and  in 
case  of  murder,  the  time  of  the  death  must  be  laid  within  a 
year  and  a  day  after  the  mortal  stroke  was  given.  The 
offence  itself  must  also  be  set  forth  with  clearness  and  cer- 
tainty, and  in  some  crimes  particular  words  of  art  must  be 
used,  which  are  so  appropriated  by  the  law  to  express  the 
precise  idea  which  it  entertains  of  the  offence,  that  no  other 
words,  however  synonymous  they  may  seem,  are  capable  of 
doing  it.  [307]     Thus,  in  treason  the  facts  must  be  laid  to 

5.  Clark's  Crim.  Proced.,   110,  114.  7.  Statutes    of    limitation    do    not 

6.  It  must  be  returned  into  open  hind  the  state  unless  expressly  named, 
court.  Gardner  v.  People,  3  Scam.  Statutes  will  be  found,  however,  in 
83;  s.  c,  20  111.  430;  Aylesworth  v.  many  states  expressly  limitinj^  th" 
People,  65  111.  301;  Clark's  Crim.  time  within  which  certain  •offences 
Proced.,  115.  must  be  prosecuted. 


Chap.  XXIII.]        Modes  of  Prosecution.  757 

be  done  "  treasonably  and  against  liis  allegiance,"  — 
anciently,  " prodxtorie  et  contra  Ugeantiae  suae  dehitum,"^ 
—  else  the  indictment  is  void.  In  indictments  for  murder, 
it  is  necessary  to  say  that  the  party  indicted  "  murdered,"  not 
^'killed"  or  "slew,"  the  other,  which  till  the  late  statute  was 
expressed  in  Latin  by  the  word  '"'  murdravitJ'  In  all  indict- 
ments for  felonies  the  adverb  "  feloniously,"  "  felonice,'"  must 
be  used,  and  for  burglaries  also  ''burglar iter,''  or  in  English, 
"burglariously;"  and  all  these  to  ascertain  the  intent.  In 
rapes,  the  word  ''rapnit/'  or  "ravished,"  is  necessary,  and 
must  not  be  expressed  by  any  periphrasis,  in  order  to  render 
the  cime  certain.  So  in  larcenies  also,  the  words  "felonice 
eepit  et  asportavit ,  feloniously  took  and  carried  away,"  are 
necessary  to  every  indictment,  for  these  only  can  express 
the  very  offence.  Also  in  indictments  for  murder  the 
length  and  depth  of  the  wound  should  in  general  be  ex- 
pressed, in  order  that  it  may  appear  to  the  court  to  have 
been  of  a  mortal  nature;  but  if  it  goes  through  the  body, 
then  its  dimensions  are  immaterial,  for  that  is  apparently 
sufficient  to  have  been  the  cause  of  the  death.  Also,  where 
a  limb  or  the  like  is  absolutely  cut  off,  there  such  descrip- 
tion is  impossible.  Lastly,  in  indictments,  the  value  of  the 
thing  which  is  the  subject  or  instrument  of  the  offence  must 
sometimes  be  expressed.  In  indictments  for  larcenies  this 
is  necessary,  that  it  may  appear  whether  it  be  grand  or 
petit  larceny,  and  whether  entitled  or  not  to  the  benefit  of 
clergy;  in  homicide  of  all  sorts  it  is  necessary,  as  the  weapon 
with  w^liich  it  is  committed  is  forfeited  to  the  king  as  a 
deodand. 

.  The  remaining  methods  of  prosecution  are  without  any 
previous  finding  by  a  jury,  to  fix  the  authorative  stamp  of 
verisimilitude  upon  the  accusation. 

One  of  these  by  the  common  law  was  when  a  thief  was  taken  icith  the 
mainor,  that  is,  with  the  thing  stolen  upon  him  in  manu.    For  he  might 

8.  Traitorously  and  contrary  to  the  dure,  pp.  137-326.     The  subject  is  too 

duty  of  his  allegiance.  voluminous  to  be  even  abstracted  here. 

The   form  and  requisites  of  indict-  See,  also,  a  summary  of  criminal  pro- 

ments  will  be  found  treated  in  chap-  cedure  in  Wash.  Crim.  Law  {3d  Ed.), 

ters    5-9    of    Clark's   Criminal    Proce-  104-26S. 


758  Modes  of  Pkosectjtioit.  [Book  IV. 

when  so  detected  flagrante  delicto  be  brought  into  court,  arraigned,  and 
tried,  without  indictment.  [308]     [Repealed.] 

The  only  species  of  proceeding  at  the  suit  of  the  king, 
without  a  previous  indictment  or  presentment  by  a  grand 
jury,  now  seems  to  be  that  of  information. 

III.  Informations  are  of  two  sorts:  first,  those  which  are 
partly  at  the  suit  of  the  king,  and  partly  at  that  of  a  subject; 
and  secondly,  such  as  are  only  in  the  name  of  the  king.  The 
former  are  usually  brought  upon  penal  statutes,  which  in- 
flict a  penalty  upon  conviction  of  the  offender,  one  part  to 
the  use  of  the  king  and  another  to  the  use  of  the  informer, 
and  are  a  sort  of  qui  tarn  actions  only  carried  on  by  a  crim- 
inal instead  of  a  civil  process. 

The  informations  that  are  exhibited  in  the  name  of  the 
king  alone  are  also  of  two  kinds :  first,  those  which  arc  truly 
and  properly  his  own  suits,  and  filed  ex  officio  by  his  own 
immediate  officer,  the  Attorney-General;  secondh),  those  in 
which,  though  the  king  is  the  nominal  prosecutor,  yet  it  is 
at  the  relation  of  some  private  person  or  common  informer; 
and  they  are  filed  by  the  king 's  coroner  and  attorney  in  the 
Court  of  King's  Bench,  usually  called  the  master  of  the 
crown-office,  who  is  for  this  purpose  the  standing  officer 
of  the  public.  The  objects  of  the  king's  own  prosecutions, 
filled  ex  officio  by  his  own  Attorney-General,  are  properly 
such  enormous  misdemeanors  as  peculiarly  tend  to  disturb 
or  endanger  his  government,  or  to  molest  or  affront  him  in 
the  regular  discharge  of  his  royal  functions.  [309]  The 
objects  of  the  other  species  of  informations  filed  by  the 
master  of  the  crown-office  upon  the  complaint  or  relation 
of  a  private  subject,  are  any  gross  and  notorious  misde- 
meanors, riots,  batteries,  libels,  and  other  immoralities  of 
an  atrocious  kind,  not  peculiarly  tending  to  disturb  the  gov- 
ernment (for  those  are  left  to  the  care  of  the  Attorney- 
General),  but  which,  on  account  of  their  magnitude  or 
pernicious  example,  deserve  the  most  public  animadversion. 
And  when  an  information  is  filed,  either  thus  or  by  the  At- 
torney-General ex  officio,  it  must  be  tried  by  a  petit  jury  of 
the  county  where  the  offence  arises;  after  which,  if  the  de- 


Chap.  XXIII.]        Modes  of  Prosecution.  759 

fendant  be  found  guilty,  the  court  must  be  resorted  to  for 
bis  punisbment. 

But  these  informations  (of  every  kind)  are  confined  by 
the  constitutional  law  to  mere  misdemeanors  only;^  for 
whenever  any  capital  offence  is  charged,  the  same  law  re- 
quires that  the  accusation  be  warranted  by  the  oath  of 
twelve  men  before  the  party  shall  be  put  to  answer  it.  [310] 

There  is  one  species  of  information  still  further  regulated 
by  statute  9  Anne,  c.  20,  viz.,  those  in  the  nature  of  a  writ 
of  quo  warranto,  which  was  shown  in  the  preceding  book  to 
be  a  remedy  given  to  the  crown  against  such  as  had  usurped 
or  intruded  into  any  office  or  franchise.^  [312]  The  modern 
information  tends  to  the  same  purpose  as  the  ancient  writ, 
being  generally  made  use  of  to  try  the  civil  rights  of  such 
franchises,  though  it  is  commenced  in  the  same  manner  as 
other  informations  are,  by  leave  of  the  court  or  at  the  will 
of  the  Attorney-General,  being  properly  a  criminal  prosecu- 
tion, in  order  to  fine  the  defendant  for  his  usurpation,  as 
well  as  to  oust  him  from  his  office,  yet  usually  considered  at 
present  as  merely  a  civil  proceeding. 

These  are  all  the  methods  of  prosecution  at  the  suit  of 
the  king.  There  yet  remains  another,  which  is  merely  at 
the  suit  of  the  subject,  and  is  called  an  appeal. 

IV.  An  appeal  [abolished  by  statute],  in  the  sense  wherein  it  is  here 
used,  does  not  signify  any  complaint  to  a  sxiperior  court  of  an  injustice 
done  by  an  inferior  one,  which  is  the  general  use  of  the  word;  but  it 
here  means  an  original  suit  at  the  time  of  its  first  commencement.  An 
appeal,  therefore,  when  spoken  of  as  a  criminal  prosecution,  denotes  an 
accusation  by  a  private  subject  against  another  for  some  heinous  crime 
demanding  punishment  on  account  of  the  particular  injury  suffered, 
rather  than  for  the  offence  against  the  public.  [See  Ashford  v.  Thornton, 
1  B.  &  Aid.  405   (1818).] 

9.  Clark's  Crim.  Proced.,  127.     By  Crim.   Proced.,    107;    Oooely's   Const, 

the  U.  S.  Const,   (amend,  art.  5)   "no  Lim.  (7th  Ed.),  436. 

person  shall  be  held  to  answer  for  a  In    Michigan    informations    are    in 

capital   or   otherwise   infamous   crime  general    use    instead    of    indictments, 

unless    on    a    presentment   or    indict-  though  the  court  may  order  the  sum- 

ment   of    a    grand    jury,"    etc.;    and  moning   of    a   grand   jury    if   deemed 

many  of  the  state  constitutions  con-  necessary, 

tain    the    same     provision.       Clark's  1.  See  ante. 


760  Process  upon  an  Indictment.  [Book  IV. 

CHAPTER  XXIV. 

OF  PROCESS  UPON  AN  INDICTMENT. 

We  have  hitherto  supposed  the  offender  to  be  in  custody 
before  the  finding  of  the  indictment,  in  which  case  he  is 
immediately  (or  as  soon  as  convenience  permits)  to  be  ar- 
raigned thereon.  [318]  But  if  he  hath  fled,  or  secretes  him- 
self, in  capital  cases,  or  hath  not,  in  smaller  misdemeanors, 
been  bound  over  to  appear  at  the  assises  or  sessions,  still 
an  indictment  may  be  preferred  ag^ainst  him  in  his  absence, 
since,  were  he  present,  he  could  not  be  heard  before  the 
grand  jury  against  it.  And  if  it  be  found,  then  process 
must  issue  to  bring  him  into  court,  for  the  indictment  can- 
not be  tried  unless  he  personally  appears,  according  to  the 
rules  of  equity  in  all  cases  and  the  express  provision  of 
statute-  28  Edw.  III.  c.  3,  in  capital  ones,  that  no  man  shall 
be  put  to  death  without  being  brought  to  answer  by  due 
process  of  law. 

The  proper  process  on  an  indictment  for  any  petit  misde- 
meanor or  on  a  penal  statute  is  a  writ  of  venire  facias,  which 
is  in  the  nature  of  a  summons  to  cause  the  party  to  appear. 
And  if  by  the  return  to  such  venire  it  appears  that  the  party 
hath  lands  in  the  county  whereby  he  may  be  distrained,  then 
a  distress  infinite  shall  be  issued  from  time  to  time  till  he 
appears.  But  if  the  sheriff  returns  that  he  hath  no  lands 
in  his  bailiwick,  then  upon  his  non-appearance  a  writ  of  capias 
shall  issue,  which  commands  the  sheriff  to  take  his  body  and 
have  him  at  the  next  assises,  and  if  he  cannot  be  taken  upon 
the  first  capias,  a  second  and  third  shall  issue,  called  an  alias 
and  a  pluries  capias.  [319]  But  on  indictments  for  treason 
or  felony  a  capias  is  the  first  process.  And  so,  in  the  case 
of  misdemeanors,  it  is  now  the  usual  practice  for  any  judge 
of  the  Court  of  King's  Bench,  upon  certificate  of  an  indict- 
ment found,  to  award  a  writ  of  capias  immediately,  in  order 
to  bring  in  the  defendant.^ 

1.  A  warrant  issues  in  such  case  Crim.  Proced.,  22;  Wash.  Crim.  Ijavr 
of  course  in  this  country.   See  Clark's       (3d  Ed.)i   173. 


Chap.  XXIV.]     Pkocess  upon  an  Indictment.  761 

But  if  he  absconds,  and  it  is  thought  proper  to  pursue  him  to  an  out- 
lawry, then  a  greater  exactness  is  necessary.  For  in  such  case,  after 
the  several  writs  have  issued  in  a  regular  number,  according  to  the 
nature  of  the  respective  crimes,  without  any  effect,  the  offender  shall  be 
put  in  the  exigent  in  order  to  his  outlawry;  that  is,  he  shall  be  exacted, 
proclaimed,  or  required  to  surrender,  at  five  county  courts.  And  if  he 
be  returned  quinto  exactus,  and  does  not  appear  at  the  fifth  exaction  or 
requisition,  then  he  is  adjudged  to  be  outlawed,  or  put  out  of  the  protec- 
tion of  the  law;  so  that  he  is  incapable  of  taking  the  benefit  of  it  in  any 
respect,  either  by  bringing  actions  or  otherwise. 

The  punishment  for  outlawries  upon  indictments  for  misdemeanors  is 
the  same  as  for  outlawries  upon  civil  actions,  viz.,  forfeiture  of  goods 
and  chattels.  But  an  outlawry  in  treason  or  felony  amounts  to  a  convic- 
tion and  attainder  of  the  offence  charged  in  the  indictment,  as  much  as 
if  the  offender  had  been  found  guilty  by  his  country.  His  life  is,  how- 
ever, still  under  the  protection  of  the  law,  and  it  is  holden  that  no  man 
is  entitled  to  kill  him  wantonly  or  willfully,  but  in  so  doing  is  guilty  of 
murder,  unless  it  happens  in  the  endeavor  to  apprehend  him.  [320] 


762  Of  Arraignment.  [Book  IV. 

CHAPTER  XXV. 

OF  ARRAIGNMENT  AND  ITS  INCIDENTS. 

When  the  offender  either  appears  voluntarily  to  an  in- 
dictment, or  was  before  in  custody,  or  is  brought  in  upon 
criminal  process  to  answer  it  in  the  proper  court,  he  is 
immediately  to  be  arraigned  thereon,  which  is  the  fifth  stage 
of  criminal  prosecution.  [322] 

To  arraign  is  nothing  else  but  to  call  the  prisoner  to  the 
bar  of  the  court,  to  answer  the  matter  charged  upon  him 
in  the  indictment.*  The  prisoner  is  to  be  called  to  the  bar 
by  his  name,  and  it  is  laid  down  in  oui"  ancient  books  that, 
though  under  an  indictment  of  the  highest  nature,  he  must 
be  brought  to  the  bar  without  irons  or  any  manner  of 
shackles  or  bonds,  unless  there  be  evident  danger  of  an 
escape,  and  then  he  may  be  secured  with  irons.  But  yet 
in  Layer's  case,  a.  d.  1722,  a  difference  was  taken  between 
the  time  of  arraignment  and  the  time  of  trial,  and  accord- 
ingly the  prisoner  stood  at  the  bar  in  chains  during  the  time 
of  his- arraignment.^ 

When  he  is  brought  to  the  bar  he  is  called  upon  by  name 
to  hold  up  his  hand,  which,  though  it  may  seem  a  trifling 
circumstance,  yet  is  of  this  importance,  that  by  the  holding 
up  of  his  hand  constat  de  persona,^  and  he  owns  himself  to 
be  of  that  name  by  which  he  is  called.  [323]  However,  it  is 
not  an  indispensable  ceremony,  for,  being  calculated  merely 
for  the  purpose  of  identifying  the  person,  any  other 
acknowledgment  will  answer  the  purpose  as  well ;  therefore 
if  the  prisoner  obstinately  and  contemptuously  refuses  to 
hold  up  his  hand,  but  confesses  he  is  the  person  named,  it  is 
fully  sufficient. 

1.  Clark's  Crim.  Proced.,  363.  he   is    freed   from   chains   or   fetters, 

2.  In  Waite's  Case,  Leach,  34,  43,  unless  such  restraint  is  necessary, 
the  prisoner  at  the  time  of  his  ar-  Wash.  Grim.  Law  (3d  Ed.),  127; 
raignraent     desired     that     his     irons  Clark's    Crim.   Proced.,    368. 

might  be  taken  off;  but  the  court  in-  3.  It   identifies   the  person.     It   is 

formed  him  that  they  had  no  author-  not  customary  with  us.   Clark's  Crim. 

ity   for   that   purpose   until   the   jury  Proced.,   368. 
were   charged  to   try   him.     With  us 


Chap.  XXV.]  Of  Aeeaignment.  763 

Then  the  indictment  is  to  be  read  to  him  distinctly  in  the 
English  tongue  (which  was  law,  even  while  all  other  pro- 
ceedings were  in  Latin),  that  he  may  fully  understand  his 
charge.  After  which  it  is  to  be  demanded  of  him  whether 
he  be  guilty  of  the  crime  whereof  he  stands  indicted,  or  not 
guilty.^  By  the  old  common  law  the  accessary  could  not 
be  arraigned  till  the  principal  was  attainted,  unless  he  chose 
it,  for  he  might  waive  the  benefit  of  the  law,  and,  therefore, 
principal  and  accessary  might,  and  may  still  be  arraigned, 
and  plead,  and  also  be  tried  together.  But  otherwise,  if  the 
principal  had  never  been  indicted  at  all  and  stood  mute, 
had  challenged  above  thirty-five  jurors  peremptorily,  had 
claimed  the  benefit  of  clergy,  had  obtained  a  pardon,  or  had 
died  before  attainder,  the  accessary  in  any  of  these  cases 
could  not  be  arraigned,  for  non  constitit^  whether  any 
felony  was  committed  or  no,  till  the  principal  was  attainted ; 
and  it  might  so  happen  that  the  accessary  should  be  con- 
victed one  day,  and  the  principal  acquitted  the  next,  which 
would  be  absurd.  However,  this  absurdity  could  only  hap- 
pen where  it  was  possible  that  a  trial  of  the  principal  might 
be  had  subsequent  to  that  of  the  accessary,  and  therefore 
the  law  still  continues  that  the  accessary  shall  not  be  tried 
so  long  as  the  principal  remains  liable  to  be  tried  hereafter. 
But  by  statute  1  Anne,  c.  9,  if  the  principal  be  once  con- 
victed, and  before  attainder  (that  is,  before  he  receives  judg- 
ment of  death  or  outlawry)  he  is  delivered  by  pardon,  the 
benefit  of  clergy,  or  otherwise,  or  if  the  principal  stands 
mute,  or  challenges  peremptorily  above  the  legal  number  of 
jurors  so  as  never  to  be  convicted  at  all:  in  any  of  these 
cases,  in  which  no  subsequent  trial  can  be  had  of  the  prin- 
cipal, the  accessary  may  be  proceeded  against  as  if  the  prin- 
cipal felon  had  been  attainted,  for  there  is  no  danger  of 
future  contradiction.  [324]  And  upon  the  trial  of  the  ac- 
cessary, as  well  after  as  before  the  conviction  of  the  prin- 
cipal, it  seems  to  be  the  better  opinion,  and  founded  on  the 
true  spirit  of  justice,  that  the  accessary  is  at  liberty,  if  he 
can,  to  controvert  the  guilt  of  his  supposed  principal,  and 

4.  Clark's  Grim.  Proced.,  368.  5.  It  did  not  appear. 


764  Of  Arraignment.  [Book  IV. 

to  prove  liim  innocent  of  the  charge,  as  well  in  point  of  fact 
as  in  point  of  law. 

When  a  criminal  is  arraigned,  he  either  stands  mute  or 
confesses  the  fact,  which  circumstances  we  may  call  inci- 
dents to  the  arraignment;  or  else  he  pleads  to  the  indict- 
ment, which  is  to  be  considered  as  the  next  stage  of  proceed- 
ings. But  first  let  us  observe  these  incidents  to  the  arraign- 
ment, of  standing  mute  or  confession. 

I.  Regrularlj  a  prisoner  is  said  to  stand  mute  when,  being  arraigned 
for  treason  or  felony,  he  either,  1.  Makes  no  answer  at  all;  or  2.  Answers 
foreign  to  the  purpose,  or  with  such  matter  as  is  not  allowable,  and 
will  not  answer  otherwise;  or  3.  Upon  having  pleaded  not  guilty,  re- 
fuses to  put  himself  upon  the  country.  If  he  says  nothing,  the  court 
ought  ex  officio  to  impanel  a  jury  to  inquire  whether  he  stands  obstinately 
mute,  or  whether  he  be  dumb  ex  visitatione  Deifi  if  the  latter  appears  to 
be  the  case,  the  judges  of  the  court  (who  are  to  be  of  counsel  for  the 
prisoner,  and  to  see  that  he  hath  law  and  justice)  shall  proceed  to  the 
trial,  and  examine  all  points  as  if  he  had  pleaded  not  guilty.  But  whether 
judgment  of  death  can  be  given  against  such  a  prisoner  who  hath  never 
pleaded,  and  can  say  nothing  in  arrest  of  judgment,  is  a  point  yet  un- 
determined. [325] 

If  he  be  found  to  be  obstinately  mute  (which  a  prisoner  hath  been 
held  to  be  that  hath  cut  out  his  own  tongue),  then,  if  it  be  on  an  indict- 
ment of  liigh  treason,  it  hath  long  been  clearly  settled  that  standing 
mute  is  an  equivalent  to  a  conviction,  and  he  shall  receive  the  same 
judgment  and  execution.  And  as  in  this  the  highest  crime,  so  also  in 
the  lowest  species  of  felony,  viz.,  in  petit  larceny  aud  in  all  misdemeanors, 
standing  mute  hath  always  been  equivalent  to  conviction.  But  upon 
appeals  or  indictments  for  other  felonies,  or  petit  treason,  the  prisoner 
was  not  by  the  ancient  law  looked  upon  as  convicted  so  as  to  receive 
judgment  for  the  felony,  but  should  for  his  obstinacy  have  received  the 
terrible  sentence  of  penance,  or  peine  (which  was  probably  nothing  more 
than  a  corrupted  abbreviation  of  prisonc)  forte  et  dure  J 

The  English  judgment  of  penance  for  standing  mute  was  as  follows: 
that  the  prisoner  be  remanded  to  the  prison  from  whence  he  came,  and 
put  into  a  low  dark  chamber,  and  there  be  laid  on  his  back  on  the  bare 
floor,  naked,  unless  where  decency  forbids;  that  there  be  placed  upon 
his  body  as  great  a  weight  of  iron  as  he  could  bear,  and  more;  that  he 
have  no  sustenance,  save  only,  on  the  first  day  three  morsels  of  the  worst 
bread,  and  on  the  second  day  three  draughts  of  standing  water,  that 
should  be  nearest  to  the  prison  door;  and  in  this  situation  this  should 
be  alternately  his  daily  diet  lUl  he  died,  or  (as  anciently  the  judgment 
ran)  till  he  answered.  [327] 

6.  By  visitation  of  God.  7.  Strong  and  hard. 


Chap.  XXV.]  Of  Arraignment.  765 

The  law  was,  that  by  standing  mute  and  suffering  this  heavy  penance 
the  judgment,  and  of  course  the  corruption  of  the  blood  and  escheat  of 
the  lands,  were  saved  in  felony  and  petit  treason,  though  not  the  for- 
feiture of  the  goods,  and  therefore  this  lingering  punishment  was  prob- 
ably introduced  in  order  to  extort  a  plea,  without  which  it  was  held 
that  no  judgment  of  death  could  be  given,  and  so  the  lord  lost  his 
escheat.  [329]  But  very  lately,  to  the  honor  of  our  laws,  it  hath  been 
enacted  by  statute  12  Geo.  III.  c.  20,  that  every  person  who,  being  ar- 
raigned for  felony  and  piracy,  shall  stand  mute  or  not  answer  directly 
to  the  offence,  shall  be  convicted  of  the  same,  and  the  same  judgment 
and  execution  (with  all  their  consequences  in  every  respect)  shall  be 
thereupon  awarded  as  if  the  person  had  been  convicted  by  verdict  or  con- 
fession of  the  crime.'* 

II.  The  other  incident  to  arraignments,  exclusive  of  the 
plea,  is  the  prisoner's  actual  confession  of  the  indictment. 
Upon  a  simple  and  plain  confession  the  court  hath  nothing 
to  do  but  to  award  judgment;  but  it  is  usually  very  back- 
ward in  receiving  and  recording  such  confession,  out  of 
tenderness  to  the"  life  of  the  subject,  and  will  generally 
advise  the  prisoner  to  retract  it  and  plead  to  the  indict- 
ment.^ 

Approvement  is  when  a  person  indicted  of  treason  or  felony  and  ar- 
raigned for  the  same  doth  confess  the  fact  before  plea  pleaded,  and  ap- 
peals or  accuses  others,  his  accomplices,  in  the  same  crime,  in  order  to 
obtain  his  pardon.  [330]  In  this  case  he  is  called  an  approver  or  prover, 
probator,  and  the  party  appealed  or  accused  is  called  the  appellee.  Such 
approvement  can  only  be  in  capital  offences,  and  it  is,  as  it  were,  equiva- 
lent to  an  indictment,  since  the  appellee  is  equally  called  upon  to  answer 
it.  And  if  he  hath  no  reasonable  and  legal  exceptions  to  ma^e  to  the 
person  of  the  approver,  which  indeed  are  very  numerous,  he  must  put 
himself  upon  his  trial,  either  by  battle  or  by  the  country,  and  if  van- 
quished or  found  guilty  must  suffer  the  judgment  of  the  law,  and  the 
approver  shall  have  his  pardon  ex  debito  justUiaeA  On  the  other  hand,  it 
the  appellee  be  conqueror  or  acquitted  by  the  jury,  the  approver  shall 
receive  judgment  to  be  hanged,  upon  his  own  confession  of  the  indict- 
ment; for  the  condition  of  his  pardon  has  failed,  viz.,  the  conviction  of 
some  other  person,  and  therefore  his  conviction  remains  absolute. 

8.  In    this    country,    when    the    de-  land.     See  Clark's  Crira.  Proced.,  369. 

fendant    refuses    to   plead,   a   plea   of  9.  See  Wash.  Crim.  Law   (3d  Ed.), 

"not  guilty"  is  entered  for  him:   and  132. 

such    is    now    the    practice    in    Eng-  1.  As  a  debt  to  justice. 


766  Of  Arraignment.  [Book  IV. 

Buit  it  is  purely  in  the  discretion  of  the  court  to  permit  the  approved 
thus  to  appeal  or  not  and,  in  fact,  this  course  of  admitting  approvements 
hath  been  long  disused. 

It  hath  been  usual  for  the  justices  of  the  peace,  by  whom 
any  person  charged  with  felony  are  committed. to  gaol,  to 
admit  some  one  of  their  accomplices  to  become  a  witness 
(or,  as  it  is  generally  termed,  king's  evidence)  against  his 
fellows,  upon  an  implied  confidence,  which  the  judges  of 
gaol-delivery  have  usually  countenanced  and  adopted,  that 
if  such  accomplice  makes  a  full  and  complete  discovery  of 
that  and  of  all  other  felonies  to  which  he  is  examined  by 
the  magistrate,  and  afterwards  gives  his  evidence  without 
prevarication  or  fraud,  he  shall  not  himself  be  prosecuted 
for  that  or  any  other  previous  offence  of  the  same  degree.^ 

2.  iSee,  however,  as  to  other  previ-      tice  stated  in  the  text  is  common  in 
ous  oflenees  of  the  same  degree,  Mrs,      this  country. 
Kudd's   Case,  Cowp.   341.     The  prac- 


Chap.  XXVI.]  Of  Plea  and  Issue.  767 

CHAPTER  XXYL 

OF  PLEA,   AND  ISSUE. 

The  plea  of  the  prisoner,  or  defensive  matter  alleged  by 
him  on  his  arraignment,  if  he  does  not  confess  or  stand 
mute,  is  either,  1,  A  plea  to  the  jurisdiction;  2.  A  demurrer; 
3.  A  plea  in  abatement;  4.  A  special  plea  in  bar;  or  5.  The 
general  issue.  [332] 

I.  A  plea  to  the  jurisdiction  is  where  an  indictment  is 
taken  before  a  court  that  hath  no  cognizance  of  the  offence, 
as  if  a  man  be  indicted  for  a  rape  at  the  sheriff's  toum,  or 
for  treason  at  the  quarter  sessions ;  in  these  or  similar  cases 
he  may  except  to  the  jurisdiction  of  the  court  without 
answering  at  all  to  the  crime  alleged.^  [333] 

II.  A  demurrer  to  the  indictment  is  incident  to  criminal 
cases  as  well  as  civil  when  the  fact  alleged  is  allowed  to  be 
true,  but  the  prisoner  joins  issue  upon  some  point  of  law  in 
the  indictment,  by  which  he  insists  that  the  fact,  as  stated, 
is  no  felony,  treason,  or  whatever  the  crime  is  alleged  to 
be.^  [334]  If  on  demurrer  the  point  of  law  be  adjudged 
against  the  prisoner,  in  such  case  he  shall  be  directed  and 
received  to  plead  the  general  issue,  not  guilty,  after  a  de- 
murrer determined  against  him.  [This  rule  holds  good  in 
indictments  for  felonies,  but  not  for  misdemeanors.] 

Demurrers  to  indictments  are  seldom  used,  since  the  same 
advantages  may  be  taken  upon  a  plea  of  not  guilty,  or  after- 
wards in  arrest  of  judgment,  when  the  verdict  has  estab- 
lished the  fact. 

III.  A  plea  in  abatement  is  principally  for  a  misnomer,  a 
wrong  name  or  false  addition  to  the  prisoner.  As,  if  James 
Allen,  gentleman,  is  indicted  by  the  name  of  John  Allen, 
esquire,  he  may  plead  that  he  has  the  name  of  James  and  not 
of  John,  and  that  he  is  a  gentleman  and  not  an  esquire. 

1.  Seldom  used,  as  the  objection  A  motion  to  quash  the  indictment 
may  be  taken  otherwise.  Clark's  is  more  common  than  a  demurrer. 
Crim.  Proced.,  375.  See  Clark's  Crim.  Proced.,  362. 

2.  Clark's   Crim.   Proced.,   379. 


768  Of  Plea  and  Issue.  [Book  IV. 

And  if  either  fact  is  found  by  a  jury,  then  the  indictment 
shall  be  abated,  as  writs  or  declarations  may  be  in  civil 
actions.  [335]  But  in  the  end  there  is  little  advantage 
accruing  to  the  prisoner  by  means  of  these  dilatory  pleas, 
because  if  the  exception  be  allowed  a  new  bill  of  indictment 
may  be  framed,  according  to  what  the  prisoner  in  his  plea 
avers  to  be  his  true  name  and  addition.  For  it  is  a  rule 
upon  all  pleas  in  abatement  that  he  who  takes  advantage 
of  a  flaw  must  at  the  same  time  show  how  it  may  be 
amended.^ 

IV.  Special  pleas  in  bar  go  to  the  merits  of  the  indict- 
ment, and  give  a  reason  why  the  prisoner  ought  not  to  answer 
it  at  all,  nor  put  himself  upon  his  trial  for  the  crime  alleged. 
These  are  of  four  kinds:  a  former  acquittal,  a  former  con- 
viction,* a  former  attainder,  or  a  pardon.  There  are  many 
other  pleas  which  may  be  pleaded  in  bar  of  an  appeal,  but 
these  are  applicable  to  both  appeals  and  indictments. 

1.  First,  the  plea  of  autrefoits  acquit,  or  a  former  acquit- 
tal, is  grounded  on  this  universal  maxim  of  the  common 
law  of  England,  that  no  man  is  to  be  brought  into  jeopardy 
of  his  life  more  than  once  for  the  same  offence.^  And  hence 
it  is  allowed  as  a  consequence,  that  when  a  man  is  once 
fairly  found  not  guilty  upon  any  indictment  or  other  prose- 
cution, before  any  court  having  competent  jurisdiction  of 
the  offence,  he  may  plead  such  acquittal  in  bar  of  any  subse- 
quent accusation  for  the  same  crime. 

2.  Secondly,  the  plea  of  autrefoits  convict,  or  a  former  con- 
viction for  the  same  identical  crime,  though  no  judgment 
was  ever  given,  or  perhaps  will  be  (being  suspended  by  the 
benefit  of  clergy  or  other  causes),  is  a  good  plea  in  bar  to 
an  indictment.  [336]  And  this  depends  upon  the  same  prin- 
ciple as  the  former,  that  no  man  .ought  to  be  twice  brought 
in  danger  of  his  life  for  one  and  the  same  crime.  Hereupon 
it  has  been  held  that  a  conviction  of  manslaughter  on  an 
appeal  or  an  indictment  is  a  bar  even  in  another  appeal,  and 

3.  See,  generally,  Clark's  Crira.  5.  A  man  is  in  jeopardy  when  a 
Proc,  377.                                                        jury  has  been  sworn  to  try  the  cause. 

4.  Olark's      Crim.  .   Proced.,      382.      Id.,  384. 
Ciiaranteed    by    constitution    in    this 

coiintry. 


Ohap.  XXVI.]  Of  Plea  and  Issue.  TGD 

much  more  in  an  indictment  of  murder,  for  the  fact  prose- 
cuted is  the  same  in  both,  though  the  offences  differ  in 
coloring  and  in  degree. 

3.  Thirdly,  the  plea  of  autrefoits  attaint,  or  a  former  attainder,^  which 
is  a  good  plea  in  bar,  whether  it  be  for  the  same  or  any  other  felony. 
For  wherever  a  man  is  attainted  of  felony,  by  judgment  of  death  either 
upon  a  verdict  or  confession,  by  outlawry,  or  heretofore  by  abjuration, 
and  whether  upon  an  appeal  or  an  indictment,  he  may  plead  such  at- 
tainder in  bar  to  any  subsequent  Indictment  or  appeal  for  the  same  or 
for  any  other  felony.  And  this  because,  generally,  such  proceeding  on  a 
second  prosecution  cannot  be  to  any  purpose,  for  the  prisoner  is  dead 
in  law  by  the  first  attainder,  his  blood  is  already  corrupted,  and  he  hath 
forfeited  all  that  he  had,  so  that  it  is  absurd  and  superfluous  to  endeavor 
to  attaint  him  a  second  time. 

4.  Lastly,  a  pardon  may  be  pleaded  in  bar  as  at  once  de- 
stroying the  end  and  purpose  of  the  indictment  by  remitting 
that  punishment  which  the  prosecution  is  calculated  to  in- 
flict." [337]  There  is  one  advantage  that  attends  pleading  a 
pardon  in  bar  or  in  arrest  of  judgment  before  sentence  is 
passed,  which  gives  it  by  much  the  preference  to  pleading 
it  aftc7'  sentence  or  attainder.  This  is,  that  by  stopping  the 
judgment  it  stops  the  attainder  and  prevents  the  corruption 
of  the  blood,  which,  when  once  corrupted  by  attainder,  can- 
not afterwards  be  restored  otherwise  than  by  act  of  parlia- 
ment. But  as  the  title  of  pardons  is  applicable  to  other 
stages  of  prosecution,  and  they  have  their  respective  force 
and  efficacy  as  well  after  as  before  conviction,  outlawry,  or 
attainder,  I  shall  therefore  reserve  the  more  minute  con- 
siderations of  them  till  I  have  gone  through  every  other 
title  except  only  that  of  execution.  [338] 

In  criminal  prosecutions  in  favor-em  vitae^  as  well  upon 
appeal  as  indictment,  when  a  prisoner's  plea  in  bar  is  found 
against  him  upon  issue  tried  by  a  jury,  or  adjudged  against 

6.  Not  applicable  to  this  country.        although     it     cannot     affect     vested 

7.  Clark's  Crim.  Proced.,  407.  rights,  absolves  the  party  from  all  the 
"A  pardon  to  be  valid  must  be  de-      legal     consequences   .of    his     crime." 

livered  and  accepted;   it  may  be  par-  Wash.  Crim.  Law   (3d  Ed.).  204;  I.o- 

tial  or  on  condition  precedent  or  sub-  gan  v.  United  States,  144  U.  S.  2?'}; 

sequent;    it  is   voidable  for  fraud   on  Edvsards  v.  Com.,  78  Va.  39. 

the  pardoning  power.     A  full  pardon,  8.  In  favor  of  life. 

49  •  ■  .    ,J 


770  Of  Plea  and  Issue.  [Book  IV. 

him  in  point  of  law  by  the  court,  still  he  shall  not  be  con- 
cluded or  convicted  thereon,  but  shall  have  judgment  of 
respondeat  ouster,®  and  may  plead  over  to  the  felony  the 
general  issue,  not  guilty. 

V.  The  general  issue,  or  plea  of  not  guilty,  upon  which 
plea  alone  the  prisoner  can  receive  his  final  judgment  of 
death.  In  case  of  an  indictment  of  felony  or  treason  there 
can  be  no  special  justification  put  in  by  way  of  plea.  As 
on  an  indictment  for  murder  a  man  cannot  plead  that  it  was 
in  his  own  defence  against  a  robber  on  the  highway  or  a 
burglar,  but  he  must  plead  the  general  issue,  not  guilty, 
and  give  this  special  matter  in  evidence.  For  (besides  that 
these  pleas  do  in  effect  amount  to  the  general  issue,  since, 
if  true,  the  prisoner  is  most  clearly  not  guilty)  as  the  facts 
in  treason  are  laid  to  be  done  proditorie  et  contra  ligeantiae 
suae  dehitum,^  and  in  felony  that  the  killing  was  done 
felonice,  these  charges  of  a  traitorous  or  felonious  intent  are 
the  points  and  very  gist  of  the  indictment,  and  must  be 
answered  directly  by  the  general  negative,  not  guilty;  and 
the  jury  upon  the  evidence  will  take  notice  of  any  defensive 
matter,  and  give  their  verdict  accordingly  as  effectually  as 
if  it  were  or  could  be  specially  pleaded.  [339]  So  that  this 
is  upon  all  accounts  the  most  advantageous  plea  for  the 
prisoner. 

When  the  prisoner  hath  thus  pleaded  not  guilty  (non 
culpahilis,  or  nient  culpahle),  which  was  formerly  used  to  be 
abbreviated  upon  the  minutes  thus:  '^ non  (or  nient)  cul.,-' 
the  clerk  of  the  assise  or  clerk  of  the  arraigns,  on  behalf  of  the 
crown,  replies  that  the  prisoner  is  guilty,  and  that  he  is  ready 
to  prove  him  so.  This  is  done  by  two  monosyllables  in  the 
same  spirit  of  abbreviation,  "cul.  prit."  which  signifies  first 
that  the  prisoner  is  guilty  {cul.  culpahle,  or  culpahilis) ,  and 
then  that  the  king  is  ready  to  prove  him  so  {prit  praesto  sum, 
or  paratus  verificare).  This  is  therefore  a  replication  on 
behalf  of  the  king  viva  voce  at  the  bar.  By  this  replication 
the  king  and  the  prisoner  are  therefore  at  issue.^ 

9.  Let  him  answer  over.  fact    and    circumstance    necessary    to 

1.  Traitorously  and  contrary  to  the  prove  the  defendant  guilty  of  the 
duty  of  his  allegiance.  crime  charged.  Clark's  Crim.  Prooed., 

2.  A  plea  of  not  guilty  denies  every  408. 


Chap.  XXVI.]  .  Of  Plea  and  Issue.  771 

The  joining  of  issue,  whicla,  though  now  usually  entered 
on  the  record,  is  not  otherwise  joined  in  any  part  of  the 
proceedings,  seems  to  be  clearly  the  meaning  of  this  obscure 
expression,  which  has  puzzled  our  most  ingenious  etymolo- 
gists, and  is  commonly  understood  as  if  the  clerk  of  the 
arraigns,  immediately  on  plea  pleaded,  had  fixed  an  oppro- 
brious name  on  the  prisoner  by  asking  him,  '^  culprit,  how 
wilt  thou  be  tried?  "  For  immediately  upon  issue  joined  it 
is  inquired  of  the  prisoner  by  what  trial  he  will  make  hi& 
innocence  appear.  [340]  This  form  has  at  present  refer- 
ence to  appeals  and  approvements  only  wherein  the  appellee 
has  his  choice  either  to  try  the  accusation  by  battle  or  by 
jury.  [341]  But  upon  indictments,  since  the  abolition  of 
ordeal,  there  can  be  no  other  trial  but  by  jury,  per  pais,  or 
by  the  country;  and  therefore,  if  the  prisoner  refuses  to  put 
himself  upon  the  inquest  in  the  usual  form,  —  that  is,  to 
answer  that  he  will  be  tried  by  God  and  the  country,  if  a 
commoner,  and  if  a  peer,  by  God  and  his  peers,  —  the  in- 
dictment, if  in  treason,  is  taken  pro  confcsso;  and  the  pris- 
oner, in  cases  of  felony,  is  adjudged  to  stand  mute,  and  if 
he  perseveres  in  his  obstinacy  shall  now  be  convicted  of 
the  felony.^ 

When  the  prisoner  has  thus  put  himself  upon  his  trials 
the  clerk  answers  in  the  humane  language  of  the  law,  which 
always  hopes  that  the  party's  innocence  rather  than  his 
guilt  may  appear,  ^'  God  send  thee  a  good  deliverance." 
And  then  they  proceed  as  soon  as  conveniently  may  be  to 
the  trial. 

3.  Plea  of  "  not  guilty  "  is  now  en  tered  for  hiaou 


772  Of  Tbial  and  Conviction.  [Book  IV. 


CHAPTER  XXVII. 
of  tkial  and  conviction. 

I.  The  most  ancient  species  of  trial  was  that  by  ordeal,  which  was 
peculiarly  disitinguished  by  the  appellation  of  judicium  Dei,^  and  some- 
times vulgaris  purgatio^  to  distinguish  it  from  the  canonical  purgation, 
which  was  by  the  oath  of  the  party.  [342]  This  was  of  two  sorts,  either 
fire-ordeal  or  water-ordeal;  the  former  being  confined  to  persons  of 
higher  rank,  the  latter  to  the  common  people.  Both  these  might  be  per- 
formed by  deputy,  but  the  principal  was  to  answer  for  the  success  of 
the  trial,  the  deputy  only  ventuiyng  some  corporal  pain  for  hire,  or  per- 
haps for  friendship.  Fire-ordeal  was  performed  either  by  taking  up  in 
the  hand,  unhurt,  a  piece  of  red-hot  iron  of  one,  two,  or  three  pounds 
weight,  or  else  by  walking  barefoot  and  blindfold  over  nine  red-hot 
ploughshares  laid  lengthwise  at  unequal  distances;  and  if  the  party  es- 
caped being  hurt  he  was  adjudged  innocent;  but  if  it  happened  otherwise, 
as  without  collusion  it  usually  did,  he  was  then  condemned  as  guilty.  [343] 

Water-ordeal  was  performed  either  by  plunging  the  bare  arm  up  to 
the  elbow  in  boiling  water  and  escaping  unhurt  thereby,  or  by  casting 
the  person  suspected  into  a  river  or  pond  of  cold  water;  and  if  he 
floated  therein  without  any  action  of  swimming,  it  was  deemed  an  evi- 
dence of  his  guilt,  but  if  he  sank  he  was  acquitted. 

II.  Another  species  of  purgation,  somewhat  similar  to  the  former,  but 
probably  sprung  from  a  presumptuous  abuse  of  revelation  in  the  ages 
of  dark  superstition,  was  the  corsned,  or  morsel  of  execration,  being  a 
piece  of  cheese  or  bread  of  about  an  ounce  in  weight,  which  was  conse- 
crated with  a  form  of  e'Xorcism,  desiring  of  the  Almighty  that  it  miglit 
cause  convulsions  and  paleness  and  find  no  passage  if  the  man  was 
really  guilty,  but  might  turn  to  health  and  noijrishment  if  he  was  inno- 
cent. [345] 

These  two  antiquated  methods  of  trial  were  principally 
in  use  among  our  Saxon  ancestors.  The  next,  which  still 
remains  in  force,  though  very  rarely  in  use,  owes  its  intro- 
duction among  us  to  the  princes  of  the  Norman  line,  and 
that  is,  — 

III.  The  trial  by  battle,  duel,  or  single  combat  [abolished],  which  was 
another  species  of  presumptuous  appeals  to  Providence,  under  an  ex- 
pectation that  Heaven  would  unquestionably  give  the  victory  to  the  in- 
nocent or  injured  party.     The  trial  by  battel  may  be  demanded  at  the 

1.  Judgment  of  God.  2.  Ck)rnraon  purgation. 


Chap.  XXVII.]     Of  Trial  axd  Conviction. 


i  4 


election  of  the  appellee  in  either  an  appeal  or  an  approvement;  and  it 
is  carried  on  with  equal  solemnity  as  that  on  a  writ  of  right,  but  with 
this  difference,  that  there  each  party  might  hire  a  champion,  but  here 
they  must  fight  in  their  proper  persons.^ 

IV.  The  fourth  method  of  trial  used  in  criminal  cases  is  that  by  the 
l»eers  of  Great  Britain,  in  the  Court  of  Parliament,  or  the  Court  of  the 
Lord  High  Steward,  when  a  peer  is  capitally  indicted  [for  treason  or 
felony  or  a  misprison  of  either] ;  for  in  case  of  an  appeal  [or  other 
criminal  prosecution]  a  peer  shall  be  tried  by  jury.  [348]  In  the  method 
and  regulation  of  its  proceedings  it  differs  little  from  the  trial  per  patriam 
or  by  jury,  except  that  no  special  verdict  can  be  given  in  the  trial  of  a 
peer,  and  except  also  that  the  peers  need  not  all  agree  in  their  verdict; 
but  the  greater  number,  consisting  of  twelve  at  the  least,  will  conclude 
and  bind  the  minority.  [349] 

V.  The  trial  by  jury,  or  the  country,  per  patriam,  is  also 
that  trial  by  the  peers  of  every  Englishman  which,  as  the 
grand  bulwark  of  his  liberties,  is  secured  to  him  by  the 
Great  Charter:  ^'^Nidlus  liber  homo  capiatur,  vel  im- 
prisonetur,  aut  exulct,  aut  aliqiio  alio  modo  destruatur,  nisi 
per  legale  judicium,  parium  snorum,  vel  per  legem  terrae."* 

The  antiquity  and  excellence  of  this  trial  for  the  settling 
of  civil  property  has  before  been  explained  at  large.  And 
it  will  hold  much  stronger  in  criminal  cases,  ^ince  in  times 
of  difficulty  and  danger  more  is  to  be  apprehended  from  the 
violence  and  partiality  of  judges  appointed  by  the  crown  in 
suits  between  the  king  and  the  subject  than  in  disputes  be- 
tween one  individual  and  another  to  settle  the  metes  and 
boundaries  of  private  property. 

When  a  prisoner  on  his  arraignment  has  pleaded  not 
guilty,  and  for  his  trial  hath  put  himself  upon  the  country, 
which  country  the  jury  are,  the  sheriff  of  the  county  must 
return  a  panel  of  jurors,  liheros  et  Icgales  homines,  de 
ricineto;  ^  that  is,  freeholders,  without  just  exception,  and  of 
the  visne  or  neighborhood,  which  is  interpreted  to  be  of  the 
county  where  the  fact  is  committed.  [350] 

In  cases  of  high  treason,  whereby  corruption  of  blood  may 

3.  See  Atihford  v.  Thornton,  1  B.  &  judgment  of  his  peers  or  by  the  law 
Aid.  405    (1818).  of  the  land. 

4.  No  freeman  shall  be  taken,  or  5.  Free  and  lawful  men  of  the 
imprisoned,  or  exiled,  or  in  any  other  neighborhood. 

way    destroyed,    unless    by    the    legal 


774  Of  Trial  and  Conviction.  [Book  IV. 

ensue  (except  treason  in  counterfeiting  the  king's  coin  or 
seals),  or  misprision  of  such  treason,  it  is  enacted  by  statute 
7  W.  in.  c.  3,  that  the  prisoner  shall  have  a  copy  of  the 
indictment  (which  includes  the  caption),  but  not  the  names 
of  the  witnesses,  five  days  at  least  before  the  trial,  that  is, 
upon  the  true  construction  of  the  act,  before  his  arraign- 
ment, for  then  is  the  time  to  take  any  exceptions  thereto, 
by  way  of  plfea  or  demurrer;  that  he  shall  also  have  a  copy 
of  the  panel  of  jurors  two  days  before  his  trial;  and  that  he 
shall  have  the  same  compulsive  process  to  bring  in  his  wit- 
nesses for  him  as  was  usual  to  compel  their  appearance 
against  him.  [351]  And  by  statute  7  Anne,  c.  21  (which  did 
not  take  place  till  after  the  decease  of  the  late  Pretender), 
all  persons  indicted  for  high  treason  or  misprision  thereof 
shall  have  not  only  a  copy  of  the  indictment,  but  a  list  of 
all  the  witnesses  to  be  produced  and  of  the  jurors  im- 
panelled, with  their  professions  and  places  of  abode,  de- 
livered to  him  ten  days  before  the  trial,  and  in  the  presence 
of  two  witnesses,  the  better  to  prepare  him  to  make  his 
challenges  and  defence.  [352]  But  this  last  act,  so  far  as 
it  affected  indictments  for  the  inferior  species  of  high 
treason  respecting  the  coin  and  the  royal  seals,  is  repealed 
by  the  statute  6  Geo.  III.  c.  53,  else  it  had  been  impossible 
to  have  tried  those  offences  in  the  same  circuit  in  which 
they  are  indicted;  for  ten  clear  days  between  the  finding 
and  the  trial  of  the  indictment  will  exceed  the  time  usually 
allotted  for  any  session  of  oyer  and  terminer.  And  no  per- 
son indicted  for  felony  is,  or  (as  the  law  stands)  ever  can 
be,  entitled  to  such  copies  before  the  time  of  his  trial.*^ 

When  the  trial  is  called  on,  the  jurors  are  to  be  sworn, 
as  they  appear,  to  the  number  of  twelve,  unless  they  are 
challenged  by  the  party. 

Challenges  may  here  be  made,  either  on  the  part  of  the 
king  or  on  that  of  the  prisoner,  and  either  to  the  whole 

6.  In  this  country  the  defendant  is  aid    of    counsel.      Wash.    Crim.    Law 

by   statute  or   constitution  generally  (3d  Ed.),  188;    Cooley's  Const.  Lim. 

entitled  to  copies   in  every  case;    he  (7th     Ed.),    47    and    note;     Clark's 

is  also  entitled  to  compulsory  process  Proced.,  428. 
ta  bring  in  his  witnesses  and  to  the 


Chap.  XXVII.]     Of  Tkial  and  Conviction.  775 

array  or  to  the  separate  polls,  for  the  very  same  reasons 
that  they  may  be  made  in  civil  causes/ 

Challenges  for  cause  may  be  without  stint  in  both  crim- 
inal and  civil  trials.  [353]  But  in  criminal  cases,  or  at  least 
in  capital  ones,  there  is,^  in  favorem  vitae,  allowed  to  the 
prisoner  an  arbitrary  and  capricious  species  of  challenge  to 
a  certain  number  of  jurors,  without  showing  any  cause  at 
all,  which  is  called  a  peremptory  challenge.  This  privilege 
of  peremptory  challenges,  though  granted  to  the  prisoner, 
is  denied  to  the  king  by  the  statute  33  Edw.  I.  st.  4,  which 
enacts  that  the  king  shall  challenge  no  jurors  without  as- 
signing a  cause  certain,  to  be  tried  and  approved  by  the 
court.  However,  it  is  held  that  the  king  need  not  assign 
his  cause  of  challenge  till  all  the  panel  is  gone  through,  and 
unless  there  cannot  be  a  full  jury  without  the  person  so 
challenged.  And  then,  and  not  sooner,  the  king's  counsel 
must  show  the  cause,  otherwise  the  juror  shall  be  sworn. 

The  peremptory  challenges  of  the  prisoner  must,  however, 
have  some  reasonable  boundary,  otherwise  he  might  never 
be  tried.  [354]  This  reasonable  boundary  is  settled  by  the 
common  law  to  be  the  number  of  thirty-five,  that  is,  one 
under  the  number  of  three  full  juries.  And  it  dealt  with 
one  who  peremptorily  challenges  above  thirty-five,  and  will 
not  retract  his  challenge,  as  with  one  who  stands  mute  or 
refuses  his  trial,  by  sentencing  him  to  the  peitie  forte  et  dure 
in  felony,  and  by  attainting  him  in  treason.  And  so  the  law 
stands  at  this  day  with  regard  to  treason  of  any  kind. 

But  by  statute  22  Hen.  VIII.  c.  14  (which,  with  regard  to 
felonies,  stands  unrepealed  by  statute  1  &  2  Ph.  &  M.  c.  10), 
no  person  arraigned  for  felony  can  be  admitted  to  make  any 
more  than  twenty  peremptory  challenges,*  But  how  if  the 
prisoner  will  peremptorily  challenge  twenty-one,  what  shall 
be  done  ?  The  old  opinion  was  that  judgment  of  pmne  forte 
et  dure  should  be  given,  as  where  he  challenged  thirty-six 
at  the  common  law;  but  the  better  opinion  seems  to  be  that 
such  challenge  shall  only  be  disregarded  and  overruled. 

7.  See  ante.  See,  also,  Clarke's  Wholly  regulated  by  statute  in  this 
Crira.  Proced.,  438-455.  country.      Consult    the    statutes    and 

8.  See   Clark's   Crim.   Proced.,   449.      local  works  on  Practice. 


T76  Of  Trial  and  Conviction'.  [Book  IV. 

If,  by  reason  of  challenges  or  the  default  of  the  jurors,  a 
sufficient  number  cannot  be  had  of  the  original  panel,  a  tales 
may  be  awarded,  as  in  civil  causes,  till  the  number  of  twelve 
is  sworn,  **  well  and  truly  to  try,  and  true  deliverance  make, 
between  our  sovereign  lord  the  kipg  and  the  prisoner  whom 
they  have  in  charge,  and  a  true  verdict  to  give,  according 
to  their  evidence."  [355] 

When  the  jury  is  sworn,  if  it  be  a  cause  of  any  conse- 
quence, the  indictment  is  usually  opened,  and  the  evidence 
marshalled,  examined,  and  enforced  by  the  counsel  for  the 
crown  or  prosecution.  But  it  is  a  settled  rule  at  common 
law  that  no  counsel  shall  be  allowed  a  prisoner  upon  his 
trial  upon  the  general  issue  in  any  capital  crime,  unless 
some  point  of  law  shall  arise  proper  to  be  debated.  The 
judges  themselves  are  so  sensible  of  this  defect  in  the  law 
that  they  never  scruple  to  allow  a  prisoner  counsel  to  in- 
struct him  what  question  to  ask,  or  even  to  ask  questions 
for  him,  with  respect  to  matters  of  fact;  for  as  to  matters  of 
law  arising  on  the  trial,  they  are  entitled  to  the  assistance 
of  counsel.  [356]  But,  lest  this  indulgence  should  be  inter- 
cepted by  superior  influence  in  the  case  of  state-criminals, 
the  legislature  has  directed  by  statute  7  W.  III.  c.  3,  that 
persons  indict ed  for  such  high  treason  as  works  a  corrup- 
tion of  the  blood  or  misprision  thereof  (except  treason  in 
counterfeiting  the  king's  coin  or  seals)  may  make  their  full 
defence  by  counsel,  not  exceeding  two,  to  be  named  by  the 
prisoner  and  assigned  by  the  court  or  judge ;  and  the  same 
indulgence,  by  statute  20  Geo.  II.  c.  30,  is  extended  to  parlia- 
mentary impeachments  for  high  treason,  which  were  ex- 
cepted in  the  former  act.^ 

The  doctrine  of  evidence  upon  pleas  of  the  crown  is,  in 
most  respects,  the  same  as  that  upon  civil  actions.^  There 
are,  however,  a  few  leading  points  wherein,  by  several  stat- 
utes and  resolutions,  a  difference  is  made  between  civil  and 
criminal  evidence. 

9.  Counsel  are   now   allowed  in  all  victed  of  treason  unless  on  the  tcsti- 

cases,  both  in  the  United  States  and  mony   of   two  witnesses   to   the   same 

in  England.  overt    act   or   on   confession    in    opea 

1.  Art.  3,  sec.  3,  U.  S.  Const.,  pro-  court." 
vidcs   that   "  no  person   shall   be  con- 


Chap.  XXVIL]     Of  Trial  and  Conviction.  777 

First,  in  all  cases  of.  high  treason,  petit  treason,  and  mis- 
prision of  treason,  by  statutes  1  Edw.  VI.  c.  12,  and  5  &  6 
Edw.  VI.  c.  11,  two  lawful  witnesses  are  required  to  convict 
a  prisoner; 2  unless  he  shall  willingly  and  without  violence 
confess  the  same.  By  statute  7  W.  III.  c.  3,  §  2,  in  posecu- 
tions  for  those  treasons  to  which  that  act  extends  [high  trea- 
son or  misprision  of  high  treason],  the  same  rule  (of  requir- 
ing tivo  witnesses)  is  again  enforced,  with  this  addition,  that 
the  confession  of  the  prisoner,  which  shall  countervail  the 
necessity  of  such  proof,  must  be  in  oj)en  court.  [357]  In  the 
construction  of  which  act  it  hath  been  holden  that  a  confes- 
sion of  the  prisoner,  taken  out  of  court,  before  a  magistrate 
or  person  having  competent  authority  to  take  it,  and  proved 
by  two  witnesses,  is  sufficient  to  convict  him  of  treason. 
But  hasty,  unguarded  confessions,  made  to  persons  having 
no  such  authority,  ought  not  to  be  admitted  as  evidence 
under  this  statute.  And,  indeed,  even  in  cases  of  felony  at 
the  common  law  they  are  the  weakest  and  most  suspicious 
of  all  testimony,  ever  liable  to  be  obtained  by  artifice,  false 
•hopes,  promises  of  favor,  or  menaces,  seldom  remembered 
accurately  or  reported  with  due  precision,  and  incapable  in 
their  nature  of  being  dilproved  by  other  negative  evidence. 
By  the  same  statute  7  W.  III.  it  is  declared  that  both  wit- 
nesses must  be  to  the  same  overt  act  of  treason,  or  one  to 
one  overt  act,  and  the  other  to  another  overt  act  of  the  same 
species  of  treason,  and  not  of  distinct  heads  or  kinds,  and  no 
evidence  shall  be  admitted  to  prove  any  overt  act  not  ex- 
pressly laid  in  the  indictment.  But  in  almost  every  other 
accusation  one  positive  witness  is  sufficient. 

In  cases  of  indictments  for  perjury  one  witness  is  not 
allowed  to  convict  a  man,  because  then  there  is  only  one 
oath  against  another.^  [358]  In  cases  of  treason,  also,  there 
is  the  accused's  oath  of  allegiance  to  counterpoise  the  in- 
formation of  a  single  witness,  and  that  may  perhaps  be  one 

2.  See  the  subject  of  Evidence,  one  witness  and  other  additional  com- 
treated  in  volume  2  of  this  series,  petent  evidence  sufficient  to  overthrow 
i?ee,  generally,  Chamberlayne'3  great  the  oath  of  defendant.  Wash.  Crim. 
work  on  this  subject.  I-aw    (3d  Ed.),  223. 

3.  There  must  be  two  witnesses  or 


778  Of  Tkial  and  Conviction.  [Book  IV. 

reason  why  the  law  requires  a  double  testimony  to  convict 
him;  though  the  principal  reason  undoubtedly  is  to  secure 
the  subject  from  being  sacrificed  to  fictitious  conspiracies, 
.which  have  been  the  engines  of  profligate  and  crafty  poli- 
titions  in  all  ages. 

Secondly,  though  from  the  reversal  of  Colonel  Sidney's  at- 
tainder by  act  of  parliament  in  1689  it  may  be  collected  that 
the  mere  similitude  of  handwriting  in  two  papers  shown  to 
a  jury,  without  other  concurrent  testimony,  is  no  evidence 
that  both  were  written  by  the  same  person,  yet  undoubtedly 
the  testimony  of  witnesses  well  acquainted  with  the  party 's 
hand,  that  they  believe  the  paper  in  question  to  have  been 
written  by  him,  is  evidence  to  be  left  to  a  jury.* 

Fourtldy,  all  presumptive  evidence  of  felony  should  be 
admitted  cautiously,  for  the  law  holds  that  it  is  better  that 
ten  guilty  prisoners  escape  than  that  one  innocent  suffer. 
And  Sir  Matthew  Hale  in  particular  lays  down  two  rules 
most  prudent  and  necessary  to  be  observed:  1.  Never  to 
convict  a  man  for  stealing  the  goods  of  a  person  unknown, 
merely  because  he  will  give  no  account  how  he  came  by. 
them,  unless  an  actual  felony  be  proved  of  such  goods;  and 
2.  Never  to  convict  any  person  of  murder  or  manslaughter 
till  at  least  the  body  be  found  dead,  on  account  of  two  in- 
stances he  mentions,  where  persons  were  executed  for  the 
murder  of  others  who  were  then  alive  but  missing.^  [359] 

Lastly,  it  was  an  ancient  and  commonly  received  practice, 
that  as  counsel  was  not  allowed  to  any  prisoner  accused  of 
a  capital  crime,  so  neither  should  he  b«  suffered  to  exculpate 
himself  by  the  testimony  of  any  witnesses.  But  by  the 
statute  7  W.  III.  c.  3  [the  accused  was  allowed  in  his  defence 
to  examine  witnesses  upon  oath]  in  cases  of  treason  within 
the  act;  and  it  was  afterwards  declared  by  statute  1  Anne, 

4.  But  the  proof  of  handwriting  is  corpus  delicti,  or  the  fact  of  the  com- 
not  evidence  in  high  treason,  unless  mission  of  the  crime  must  be  proved 
the  papers  are  found  in  the  cust«dy  before  attempting  to  fasten  its  oom- 
of  the  prisoner.  See,  generally,  as  mission  upon  the  defendant.  It  may, 
to  expert  evidence  on  handwriting,  however,  be  established  by  circum- 
Rogers'  Expert  Testimony  and  Law-  stantial  evidence.  Wash.  Crim.  Law 
Bon's  Expert  Testimony.  (3d  Ed.),  221;  1  Bish.  Crim.  Proced. 

5.  In  all  criminal  prosecutions  the  (4th  Ed.),  §  1056  et  seq. 


Chap.  XXVII.]     Of  Trial  and  Conviction.  779 

st.  2,  c.  9,  that  in  all  cases  of  treason  and  felony  all  witnesses 
for  the  prisoner  should  be  examined  upon  oath  in  like 
manner  a?  the  witnesses  against  him.  [360] 

When  the  evidence  on  both  sides  is  closed,  and  indeed 
when  any  evidence  hath  been  given,  the  jury  cannot  be  dis- 
charged (unless  in  cases  of  evident  necessity)  till  they  have 
given  in  their  verdict,  but  are  to  consider  of  it,  and  deliver 
it  in,  with  the  same  forms  as  upon  civil  causes;  only  they 
cannot,  in  a  criminal  case  which  touches  life  or  member, 
give  a  privy  verdict.  But  the  judges  may  adjourn  while 
the  jury  are  withdrawn  to  confer,  and  return  to  receive  the 
verdict  in  open  court.  And  such  public  or  open  verdict 
may  be  either  general,  guilty,  or  not  guilty,  or  special,  set- 
ting forth  all  the  circumstances  of  the  case,  and  praying 
the  judgment  of  the  court  whether,  for  instance,  on  the  facts 
stated,  it  be  murder,  manslaughter,  or  no  crime  at  all.®  [361] 
This  is  where  they  doubt  the  matter  of  law,  and  therefore 
choose  to  leave  it  to  the  determination  of  the  court,  though 
they  have  an  unquestionable  right  of  determining  upon  all 
the  circumstances,  and  finding  a  general  verdict,  if  they 
think  pi'oper  so  to  hazard  a  breach  of  their  oaths.  Yet  in 
many  instances  where,  contrary  to  evidence,  the  jury  have 
found  the  prisoner  guilty,  their  verdict  hath  been  mercifully 
set  aside,  and  a  new  trial  granted  by  the  Court  of  King's 
Bench.  But  there  hath  yet  been  no  instance  of  granting  a 
new  trial  where  the  prisoner  was  acquitted  upon  the  first.' 

If  the  jury  therefore  find  the  prisoner  not  guilty  he  is 
then  forever  quit  and  discharged  of  the  accusation,  except 
he  be  appealed  of  felony  within  the  time  limited  by  law. 
And  upon  such  his  acquittal  or  discharge  for  want  of  prose- 
cution he  shall  be  immediately  set  at  large  without  payment 

6.  Very  rare,  but  allowable  unless  unconstitutional;  and  it  is  also  allowed 
prohibited  by  statute.  Clark's  Crim.  by  statute  in  ease  of  an  acquittal  by 
Proced.,  488  and  cases  cited,  the  jury  on  the  facts  for  the  purpose 

7.  "  By  statute  in  many  of  the  of  obtaining  and  settling  questions  of 
states  a  writ  of  error  or  appeal  is  law  but  not  for  the  purpose  of  ob- 
allowed  the  state  from  an  adverse  taining  a  new  trial."  Clark's  Crim. 
judgment  on  motion  to  quash  or  de-  Proced.,  393  and  note,  where  the  cases 
murrer,  or  motion  in  arrest  of  judg-  are  collected. 

ment  or  where  a  statute  has  been  held 


780  Of  Tkial  and  Conviction-.  [Book  IV. 

of  any  fee  to  the  gaoler.  [362]  But  if  the  jury  find  him 
guilty,  he  is  then  said  to  be  convicted  of  the  crime  whereof 
he  stands  indicted,  —  which  conviction  may  accrue  two 
ways,  either  by  his  confessing  the  offence  and  pleading 
guilty,  or  by  his  being  found  so  by  the  verdict  of  his 
country. 

When  the  offender  is  thus  convicted  there  are  two  col- 
lateral circumstances  that  immediately  arise. 

(1)  On  a  conviction  (or  even  upon  an  acquittal  where  there  was  a 
reasonable  ground  to  prosecute,  and  in  fact  a  bona  fide  prosecution)  for 
any  grand  or  petit  larceny  or  other  felony,  the  reasonable  expenses  of 
prosecution,  and  also,  if  the  prosecutor  be  poor,  a  compensation  for  his 
trouble  and  loss  of  time,  are  by  statutes  25  Geo.  II.  c.  36,  and  18  Geo. 
III.  c.  19,  to  be  allowed  him  out  of  the  county  stock  if  he  petitions  the 
judge  for  that  purpose;  and  by  statute  27  Geo.  II.  c.  3,  explained  by  the 
same  statute,  18  Geo.  III.  c.  19,  all  persons  appearing  upon  recognizance 
or  subpoena  to  give  evidence,  whether  any  indictment  be  preferred  or 
no,  and  as  well  without  conviction  as  with  it,  are  entitled  to  be  paid 
their  charges,  with  a  further  allowance  (if  poor)  for  their  trouble  and 
loss  of  time.s 

(2)  On  a  conviction  of  larceny  in  particular,  the  prose- 
cutor shall  have  restitution  of  his  goods,  by  virtue  of  the 
statute  21  Hen.  VIII.  c.  11.  For  by  the  common  law  there 
was  no  restitution  of  goods  upon  an  indictment,  because  it 
is  at  the  suit  of  the  king  only,  and  therefore  the  party  was 
enforced  to  bring  an  appeal  of  robbery  in  order  to  have  his 
goods  again.  And  it  is  now  usual  for  the  court,  upon  the 
conviction  of  a  felon,  to  order,  without  any  writ,  immediate 
restitution  of  such  goods  as  are  brought  into  court  to  be 
made  to  the  several  prosecutors.  [363]  Or  else,  secomlJif, 
without  such  writ  of  restitution,  the  party  may  peaceably 
retake  his  goods  wherever  he  happens  to  find  them,  unless 
a  new  property  be  fairly  acquired  therein.  Or,  lastJi/,  if  the 
felon  be  convicted  and  pardoned,  or  be  allowed  his  clergy, 
the  party  robbed  may  bring  his  action  of  trover  against 
him  for  his  goods,  and  recover  a  satisfaction  in  damages. 
But  such  action  lies  not  before  prosecution,  for  so  felonies 

8.  With  us  costs  and  expenses  are   entirely  a  matter  of  statute. 


Chap.  XX VII.]     Of  Trial  and  Conviction.       -  781 

would  be  made  up  and  healed;  and  also  recaption  is  unlaw- 
ful if  it  be  done  with  intention  to  smother  or  compound  the 
larceny,  it  then  becoming  the  heinous  offence  of  theft-bote, 
as  was  mentioned  in  a  former  chapter. 

It  is  not  uncommon,  when  a  person  is  convicted  of  a  mis- 
demeanor which  principally  and  more  immediately  affects 
some  individual,  as  a  battery,  imprisonment,  or  the  like,  for 
the  court  to  permit  the  defendant  to  speak  with  the  prose- 
cutor before  any  judgment  is  pronounced,  and  if  the  prose- 
cutor declares  himself  satisfied  to  inflict  but  a  trivial  pun- 
ishment. .This  is  done  to  reimburse  the  prosecutor  his 
expense  and  make  him  some  private  amends  without  the 
trouble  and  circuity  of  a  civil  action.  But  it  surely  is  a 
dangerous  practice.*^ 

9.  The  compounding  of  a  felony  is  bidden   by    statute.      See    Rev.    Stat, 

in  itself  a  crime;  but  some   (not  all)  111.  1874,  358,  §  43;  Washburn  Crim. 

misdemeanors  may  be  compounded  or  Law    (3d  Ed.),   13;   McClain's  Crim. 

settled.   In  some  states  the  compound-  Law,  §  939;  Om.  v.  Pease,  16  Mass. 

ing  of  any  crime  is  very  properly  for-  92.        , 


782  Of  Benefit  of  Cleegy.  [Book  IV. 


CHAPTER  XXVIII. 

OF  THE  BENEFIT   OF   CLERGY.^ 

After  trial  and  conviction,  the  judgment  of  the  court  regularly  fol- 
lows, unless  soispended  or  arrested  by  some  intervening  circumstance; 
of  which  the  principal  is  the  benefit  of  clergj  :2  a  title  of  no  small  curios- 
ity as  well  as  use;  and  concerning  which  I  shall  therefore  inquire:  1. 
Into  its  original,  and  the  various  mutations  which  this  privilege  of  clergy 
has  sustained.  2.  To  what  persons  it  is  to  be  allowed  at  this  day.  3. 
In  what  cases.    4.  The  consequences  of  allowing  it. 

I.  Clergy,  the  privilegium  clericale,  or  in  common  speech,  the  benefits  of 
clergy,  had  its  original  from  the  pious  regard  paid  by  Christian  princes 
to  the  church  in  its  infant  state;  and  the  ill  use  which  the  popish  eccles- 
iastics soon  made  of  that  pious  regard.  The  exemptions  which  they 
granted  to  the  church,  were  principally  of  two  kinds:  1.  Exemption 
of  places  consecrated  to  religious  duties,  from  criminal  arrests,  which 
was  the  foundation  of  sanctuaries;  2.  Exemption  of  the  persons  of  clergy- 
men from  criminal  process  before  the  secular  judge  in  a  few  particular 
cases,  which  was  the  true  original  and  meaning  of  the  privilegium  clericale. 

But  the  clergy  increasing  in  wealth,  power,  honour,  number  and  in- 
terest, began  soon  to  set  up  for  themselves:  and  that  which  they  ob- 
tained by  the  favour  of  the  civil  government,  they  now  claimed  -as  their 
inherent  right:  and  as  a  [366]  right  of  the  highest  nature,  indefeasible, 
and  jure  divino.^a.  uy  their  canons  therefore  and  constitutions  they  en- 
deavoured at  and  where  they  met  with  easy  princes  obtained,  a  vast 
extension  of  these  exemptions:  as  well  in  regard  to  the  crimes  them- 
selves, of  which  the  list  became  quite  universal ;3  as  in  regard  to  the 
persons  exempted,  among  whom  were  at  length  comprehended  not  only 
every  little  subordinate  officer  belonging  to  the  church  or  clergy,  but 
even  many  that  were  totally  laymen. 

In  England,  however,  although  the  usurpations  of  the  pope  were  very 
many  and  grievous,  till  Henry  the  Eighth  entirely  exterminated  his  supre- 
macy, yet  a  total  exemption  of  the  clergy  from  secular  jurisdiction  could 
never  be  thoroughly  effected,  though  often  endeavoured  by  the  clergy:  * 

1.  Benefit  of  clergy  no  longer  exists  ony,  G.;  1  Chit.  C.  L.  (2d  Ed.),  667 
either    in    England    or    this    country.      to  690.. 

On  account  of  its  historical  interest,  2a.  The    principal    argument    upon 

however,  it  is  retained  in  small  type.  which    they    founded    this    exemption 

2.  As  to  this  subject  in  general,  see  was  that  t^xt  of  Scripture:  "Touch 
2  Hale,  323  to  391;  index,  Clergj';  not  mine  annointed,  and  do  my  proph- 
Fost.  C.  L.   index,  Clergy;    Williams  ets   no   harm."     Keilw.   181. 

J.   Felony,  V.;    Burn  J.   Clergy;    II.;  3.  See  Book  III,  page  *62. 

Com.  Dig.  Justices,  Y. ;   Bac.  Ab.  Fel-  4.  Keilw.   180. 


Chap.  XXVIII.]     Of  Benefit  of  Clergy.  783 

and  therefore,  though  the  ancient  prwilegium  clericale  was  In  some  capital 
cases,  yet  it  was  not  universally  allowed.  And  in  those  particular  cases, 
the  use  was  for  the  bishop  or  ordinary  to  demand  his  clerks  to  be  re- 
mitted out  of  the  king's  courts,  as  soon  as  they  were  indicted:  concern- 
ing the  allowance  of  which  demand  there  was  for  many  years  a  great 
uncertainty;  ^  till  at  length  it  was  finally  settled  in  the  reign  of  Henry 
the  Sixth,  that  the  prisoner  should  first  be  arraigned;  and  might  either 
then  claim  his  benefit  of  clergy,  by  way  of  declinatory  plea;  or,  after 
conviction,  by  way  of  arresting  judgment.  This  lattSr  way  is  most 
usually  practised,  as  it  is  more  to  the  satisfaction  of  the  court  to  have 
the  crime  previously  ascertained  by  confession  or  the  verdict  of  a  jury: 
and  also  it  is  more  advantageous  to  the  prisoner  himself,  who  may  pos- 
sibly be  acquitted,  and  so  need  not  the  benefit  of  his  clergy  at  all. 

Originally  the  law  was  held,  that  no  man  should  be  admitted  to  the 
privilege  of  clergy,  but  such  as  had  the  [367]  habitum  et  tonsuram  cleri- 
calcm.<^  But  in  process  of  time  a  much  wider  and  more  comprehensive 
criterion  was  established:  every  one  that  could  read  (a  mark  of  great 
learning  in  those  days  of  ignorance  and  her  sister  superstition)  being 
accounted  a  clerk  or  clcricns,  and  allowed  the  benefit  of  clerkship,  though 
neither  initiated  in  holy  orders,  nor  trimmed  with  the  clerical  tonsure. 
But  when  learning,  by  means  of  the  invention  of  printing,  anil  other 
concurrent  causes,  began  to  be  more  generally  disseminated  than  form- 
erly; and  reading  was  no  longer  a  competent  proof  of  clerkship,  or  be- 
ing in  holy  orders;  it  was  found  that  as  many  laymen  as  divines  were 
admitted  to  the  privilegium  clericale:  and  therefore  by  statute  4  Hen.  VH. 
c.  13,  a  distinction  was  once  more  drawn  between  mere  lay  scholars,  and 
clerks  that  were  really  in  orders.  And,  though  it  was  thought  reasonable 
still  to  mitigate  the  severity  of  the  law  with  regard  to  the  former,  yet 
they  were  not  put  upon  the  same  footing  with  actual  clergy;  being  sub- 
jected to  a  slight  degree  of  punishment,  and  not  allowed  to  claim  the 
clerical  privilege  more  than  once.  Accordingly  the  statute  directs  that 
no  person  once  admitted  to  the  benefit  of  clergy,  shall  be  admitted  thereto 
a  second  time,  unless  he  produces  his  orders:  and  in  order  to  distinguish 
their  persons,  all  laymen  who  are  allowed  this  privilege  shall  be  burnt 
with  a  hot  iron  in  the  brawn  of  the  left  thumb.  This  distinction  be- 
tween learned  laymen,  and  real  clerks  in  orders,  was  abolished  for  a  time 
by  the  statutes  28  Hen.  VIII.  c.  1,  and  32  Hen.  VIII.  c.  3,  but  it  is  held" 
to  have  been  virtually  restored  by  statute  1  Edw.  VI.  c.  12,  which  statute 
also  enacts,  that  lords  of  parliament  and  peers  of  the  realm,  having 
place  and  voice  in  parliament,  may  have  the  benefit  of  their  peerage, 
equivalent  to  that  of  clergy,  for  the  first  offence  (al though  they  cannot 
read,  and  without  being  burnt  in  the  hand),  for  all  offences  then  clergy- 

5.  2  Hal.  P.  C.  377.  7.  Hob.  294;  2  Hal.  P.  C.  375, 

6.  2  Hal.  P.  C.  372,  M.  Paris,  A. 
D.  1259.     See  Book  I,  p.  24. 


784  Of  Benefit  of  Clergy.  [Book  IV". 

able  to  commoners,  and  also  for  the  crimes  of  house-breaking,  highway- 
robbery,  horse-stealing,  and  robbing  of  churches.^ 

[368]  After  this  burning  the  laity,  and  before  it  the  real  clergy,  were 
discharged  from  the  sentence  of  the  law  in  the  king's  court,  and  de- 
livered over  to  the  ordinary,  to  be  dealt  with  according  to  the  ecclesias- 
tical canons.  Whereupon  the  ordinary,  not  satisfied  with  the  proofs  ad- 
duced in  the  profane  secular  court,  set  himself  formerly  to  work  to  make 
a  purgation  of  the  offender  by  a  new  canonical  trial;  although  he  had 
been  previouesly  convicted  by  his  country,  or  perhaps  by  his  own  con- 
fession.^  This  trial  was  held  before  the  bishop  in  person,  or  his  deputy; 
and  by  a  jury  of  twelve  clerks:  and  there,  first,  the  party  himself  was 
required  to  make  oath  of  his  own  innocence;  next,  there  was  to  be  the 
oath  of  twelve  compurgators,  who  swore  they  believed  he  spoke  the 
truth;  then,  witnesses  were  to  be  examined  upon  oath,  but  on  behalf  of 
the  prisoner  only:  and  lastly,  the  jury  were  to  bring  in  their  verdict 
upon  oath,  which  usually  acquitted  the  prisoner;  otherwise,  if  a  clerk, 
he  was  degraded,  or  put  to  penance.'  A  learned  judge,  in  the  beginning 
of  the  last  century,2  remarks  with  much  indignation  the  vast  complica- 
tion of  perjury  and  subornation  of  perjury,  in  this  solemn  farce  of  a 
mock  trial;  the  witnesses,  the  compurgators,  and  the  jury,  being  all  of 
them  pertakers  in  the  guilt,  the  delinquent  party  also,  though  convicted 
before  on  the  clearest  evidence,  and  conscious  of  his  own  offence,  yet 
was  permitted  and  almost  compelled  to  swear  himself  not  guilty:  nor 
was  the  good  bishop  himself,  under  whose  countenance  this  scene  of 
wickedness  was  daily  transacted,  by  any  means  exempt  from  a  share  of 
it.  And  yet  by  this  purgation  the  party  was  restored  to  his  credit,  his 
libertj%  his  lands,  and  his  capacity  for  purchasing  afresh,  and  was  en- 
tirely made  a  new  and  an  innocent  man. 

8.  Upon  the  conviction  of  the  duch-  tension  of  the  benefit  of  clergy,   and 

<>ss   of   Kingston   for   bigamy,   it   was  therefore  granted   only  to  those  who 

argued  by  the  attorney-general  Thur-  were    or    might    be    entitled    to    that 

low,  that  peeresses  were  not  entitled  benefit;   but  as  no  female,  peeress  or 

by  1  Edw.  VI.,  c.  12,  like  peers  to  the  commoner,  at  that  time  was  entitled 

privilege  of  peerage;   but  it  was  the  to    the   benefit   of    clergy,    so    it    was 

unanimous  opinion  of  the  judges,  that  not   the   intention   of   the    legislature 

a    peeress    convicted   of    a    clergyable  to  grant  to  any  female  the  privilege 

felony   ought  to  be   immediately   dis-  of   peerage.     And   in  my   opinion  the 

charged   without   being   burnt    in   the  argument   of   the   attorney-general    is 

hand,  or  without  being  liable  to  any  much   more   convincing   and   satisfac- 

imprisonment.     11  H.  St.  Tr.  264.    If  tory,  as  a  legal  demonstration,   than 

the  duchess  had   been  admitted,   like  the  arguments  of  the  counsel  on  the 

a   commoner,   only   to   the   benefit    of  other   side,  or  the  reasons  stated  for 

clergy,   burning   in  the  hand   at  that  the  opinions  of  the  judges, 
time   could    not   have   been   dispensed  9.  Staundford,  P.  C.  138  b. 

with.      The   argum<'nt   was.   that   the  1.  3  P.  Wms.  447;  Hub.  289. 

privilege  of  peerage  was  only  an  ex-  2.  Hob.  291. 


Chap.  XXVIIL]     Of  Benefit  of  Clergy.  785 

This  scandalous  prostitution  of  oaths,  and  the  forms  of  justice,  in  the 
almost  constant  acquittal  of  felonious  clerks  by  purgation,  was  the  oc- 
casion, that,  upon  very  heinous  and  [369]  notorious  circumstances  of 
guilt,  the  temporal  courts  would  not  trust  th«  ordinary  with  the  trial 
of  the  offender,  hut  delivered  over  to  him  the  convicted  clerk,  absque 
purgatione  facienda;^  in  which  situation  the  clerk  convict  could  not  make 
purgation ;  but  was  to  continue  in  prison  during  life,  and  was  incapable 
of  acquiring  any  personal  property,  or  receiving  the  profits  of  his  lands, 
unless  the  king  should  please  to  pardon  him.  Both  these  courses  were 
in  some  degree  exceptionable;  the  latter  being  perhaps  too  rigid,  as 
the  former  was  productive  of  the  most  abandoned  perjury.  As  there- 
fore these  mock  trials  took  their  rise  from  factious  and  popish  tenets, 
tending  to  exempt  one  part  of  the  nation  from  the  general  municipal 
law,  it  became  high  time,  when  the  reformation  was  thoroughly  es- 
tablished, to  abolish  so  vain  and  impious  a  ceremony. 

Accordingly  the  statute  of  18  Eliz.  c.  7,  enacts,  that,  for  the  avoiding 
of  such  perjuries  and  abuses,  after  the  offender  has  been  allowed  his 
clergy,  he  shall  not  be  delivered  to  the  ordinary,  as  formerly;  but,  upon 
such  allowance  and  burning  in  the  hand,  he  shall  forthwith  be  enlarged 
and  delivered  out  of  prison;  with  proviso,  that  the  judge  may,  if  he 
thinks  fit,  continue  the  offender  in  gaol  for  any  time  not  exceeding  a 
year.  And  thus  the  law  continued,  for  above  a  century,  unaltered,  ex- 
cept only  that  the  statute  of  21  Jac.  I.  c.  6,  allowed,  that  women  con- 
victed of  simple  larcenies  under  the  value  of  ten  shillings  should  (not 
properly  have  the  benefit  of  clergy,  for  they  were  not  called  upon  to 
read;  but)  be  burned  in  the  hand,  and  whipped,''  stocked,  or  imprisoned 
for  any  time  not  exceeding  a  year.  And  a  similar  indulgence,  by  the 
statutes  3  &  4  W.  &  M.  c.  9,  and  4  &  5  W.  &  M.  c.  24.  was  extended  to 
women,  guilty  of  any  clergyable  felony  whatsoever;  who  were  allowed 
once  to  claim  the  benefit  of  the  statute,  in  like  manner  as  men  might 
claim  the  benefit  of  clergy,  and  to  be  discharged  upon  being  burnt  in  the 
hand,  and  imprisoned  for  any  time  not  exceeding  a  year.  The  punish- 
ment of  burning  in  the  hand,  being  found  ineffectual,  was  also  changed 
by  statute  10  &  11  AV.  III.  c.  23,  into  burning  in  the  most  visible  part  of 
the  left  cheek,  nearest  the  nose:  but  such  an  indelible  stigma  being  found 
by  experience  to  render  offenders  desperate,  this  provision  was  repealed, 
about  seven  years  afterwards,  by  statute  5  Ann.  c.  6,  and  till  that  period, 
all  women,  all  peers  of  parliament  and  peeresses,  and  all  male  com- 
moners who  could  read,  were  discharged  [370]  in  all  clergyable  felonies; 
the  males  absolutely,  if  clerks  in  orders;  and  other  commoners,  both 
male  and  female,  upon  branding;  and  peers  and  peeresses  without  brand- 
ing, for  the  first  offence:  yet  all  liable  (excepting  peers  and  peeresses), 
if  the  judge  saw  occasion,  to  imprisonment  not  exceeding  a  year.     And 

3.  Without  making   purgation. 

4.  Whipping  of  women  is  abolished 
by  1  Geo.  IV..  c.  57, 

50 


786  Of  Benefit  of  Clergy.  [Book  IV. 

those  men  who  could  not  read,  if  under  the  degree  of  peerage,  were 
hanged. 

Afterwards  indeed  it  was  considered,  that  education  and  learning  were 
no  extenuations  of  gilt,  but  quite  the  reverse,  and  that,  if  the  punish- 
ment of  death  for  simple  felony  was'  too  severe  for  those  who  had  been 
liberally  instructed,  it  was,  a  fortiori,  too  severe  for  the  ignoranc  also. 
And  thereupon  by  the  same  statute  5  Ann.  c.  6,  it  was  enacted,  tha/t 
the  benefit  of  clergy  should  be  granted  to  all  those  who  were  entitled 
to  ask  it,  without  requiring  them  to  read  by  way  of  conditional  merit.^ 
And  experience  having  shown  that  so  very  universal  a  lenity  was  fre- 
quently inconvenient,  and  an  encouragement  to  commit  the  lower  de- 
grees of  felony;  and  that,  though  capital  punishments  were  too  rigorous 
for  these  inferior  offences,  yet  no  punishment  at  all  (or  next  to  none) 
was  as  much  too  gentle;  it  was  further  enacted  by  the  same  statute, 
that  when  any  person  is  convicted  of  any  theft,  or  larceny,  and  burnt 
in  the  hand  for  the  same  according  to  the  ancient  law,  he  shall  also, 
at  the  discretion  of  the  judge,  be  committed  to  the  house  of  correction 
or  public  workhouse,  to  be  there  kept  to  hard  labour,  for  any  time  not 
less  than  six  months  and  not  exceeding  two  years;  with  a  power  of  in- 
flicting a  double  confinement  in  case  of  the  party's  escape  from  the  first. 
And  it  was  also  enacted  by  the  statutes  4  Geo.  I.  c.  11,  and  6  Geo.  I.  c.  23, 
that  when  any  persons  shall  be  convicted  of  any  larceny,  either  grand  or 
petit,  or  any  felonious  stealing  or  taking  of  money  or  goods  and  chattels 
either  from  the  person  or  the  house  of  any  other,  or  in  any  other  man- 
ner, and  who  by  the  law  shall  be  entitled  to  the  benefit  of  clergy,  and 
liable  only  to  the  penalties  of  burning  in  the  hand  or  whipping,  the  court 
in  their  discretion,  instead  of  such  burning  in  the  hand  or  whipping, 
may  direct  such  offenders  to  be  transported  to  America  (or,  by  the 
statute  19  Geo.  III.  c.  74,  to  any  other  parts  beyond  the  seas)  for  seven 
years:  and,  if  they  [371]  return  or  are  seen  at  large  in  this  kingdom 
within  that  time,  it  shall  be  felony  without  benefit  of  clergy.  And  by 
the  subsequent  statutes  16  Geo.  II.  c.  15,  and  8  Geo.  III.  c,  15,  many  wise 
provisions  are  made  for  the  more  speedy  and  effectual  execution  of  the 
laws  relating  to  transportation,  and  the  conviction  of  such  as  transgress 

5.  The  statute  enacts,  that  if  a  per-  benefit  of  the  statute.  It  would  per- 
son convicted  of  a  clergyable  offence  haps  have  been  more  consistent  with 
shall  pray  the  benefit  of  this  act,  he  the  dignity  of  a  court  of  justice  to 
shall  not  be  required  to  read,  but  have  granted  the  benefit  of  clergy 
shall  be  taken  to  be,  and  punished  without  requiring  an  unnecessary 
as,  a  clerk  convict.  Hence  persons  form,  the  meaning  of  which  very  few 
convicted  of  manslaughters,  bigamies,  comprehend.  And  if  the  prisoner 
and  simple  grand  larcenies,  etc.,  are  should  obstinately  refuse  to  pray  the 
still  asked  what  they  have  to  say  why  benefit  of  the  statute,  it  seems  to  be 
judgment  of  death  should  not  be  pro-  an  unavoidable  consequence  that  the 
nounced  upon  them?  And  they  are  judge  must  pronounce  sentence  of 
then  told  to  kneel  down,  and  pray  the  death  upon  him. 


Chap.  XXVIII.]     Of  Benefit  of  Clekgy.  787 

them.  But  now,  by  the  statute  19  Geo.  III.  c.  74,  all  otfenders  liable 
to  transportation  may,  in  lieu  thereof,  at  the  discretion  of  the  judges, 
be  employed,  if  males  except  in  the  oase  of  petty  larceny,  in  hard  labour 
for  the  benefit  of  some  public  navigation;  or,  whether  males  or  females, 
may,  in  all  cases,  be  confined  to  hard  labour  in  certain  penitentiary 
houses,  to  be  erected  by  virtue  of  the  said  act,  for  the  several  terms 
therein  specified,  but  in  no  oase  exceeding  seven  years;  with  a  power 
of  subsequent  mitigation,  and  even  of  reward,  in  case  of  their  good  be- 
haviour. But  if  they  escape  and  are  re-taken,  for  the  first  time  an  addi- 
tion of  three  years  is  made  to  the  term  of  their  confinement;  and  a 
second  escape  is  felony  without  benefit  of  clergy. 

In  forming  the  plan  of  these  penitentiary  houses,  the  principal  objects 
have  been,  by  sobriety,  cleanliness,  and  medical  assistance,  by  a  regular 
series  of  labour,  by  solitary  confinement  during  the  intervals  of  work, 
and  by  due  religious  instruction,  to  preserve  and  amend  the  health  of  the 
unhappy  offenders,  to  inure  them  to  habits  of  industry,  to  guard  them 
from  pernicious  company,  to  accustom  them  to  serious  reflection,  and 
to  teach  them  both  the  principles  and  practice  of  every  christian  and 
moral  duty.  And  if  the  whole  of  this  plan  be  properly  executed,  and  its 
defects  be  timely  supplied,  there  is  reason  to  hope  that  such  a  reforma- 
tion may  be  effected  in  the  lower  classes  of  mankind,  and  such  a  gradual 
scale  of  punishment  be  affixed  to  all  gradations  of  guilt,  as  may  in  time 
supersede  the  necessity  of  capital  punishment,  except  for  very  atrocious 
crimes. 

It  is  also  enacted  by  the  samie  statute,  19  Geo.  III.  c.  74,  that  instead 
of  burning  in  the  hand  (which  was  sometimes-  too  slight  and  sometimes 
too  disgraceful  a  punishment)  the  court  in  all  clergyable  felonies  may 
impose  a  pecuniary  fine;  or  (except  in  the  case  of  manslaughter)  may 
order  the  offender  to  be  once  or  oftener,  but  not  more  than  thrice,  either 
publicly  or  privately  whipped;  such  private  whipping  (to  prevent  col- 
lusion or  abuse)  to  be  inflicted  in  the  presence  of  two  witnesses,  and 
in  c-ase  of  female  offenders  in  the  presence  of  females  only.  Which  fine 
or  whipping  shall  have  the  same  consequences  as  burning  in  the  hand; 
and  the  offender,  so  fined  or  whipped,  shall  be  equally  liable  to  a  subse- 
quent detainer  or  imprisionment. 

In  this  state  does  the  benefit  of  clergy  at  present  stand;  very  consider- 
ably different  from  its  original  institution:  the  wisdom  of  the  English 
legislature  having,  in  the  course  of  a  long  and  laborious  process,  ex- 
tracted by  a  noble  alchemy  rich  medicines  out  of  poisonous  ingredients; 
and  converted,  by  gradual  mutations,  what  was  at  first  an  unreasonable 
exemption  of  particular  popish  ecclesiastics,  into  a  merciful  mitigation 
of  the  general  law,  with  respect  to  capital  punishment. 

From  the  whole  of  this  detail  we  may  collect,  that  however  in  times 
of  ignorance  and  superstition  that  monster  in  true  policy  may  for  a 
while  subsist,  of  a  body  of  men.  residing  in  the  bowels  of  a  state,  and 


788  Of  Benefit  of  Clergy.  [Book  IV, 

yet  independent  of  its  laws;  yet,  when  learning  and  rational  religion 
have  a  little  enlightened  men's  minds,  society  can  no  longer  endure  an 
absurdity  so  gross,  as  must  destroy  its  very  fundamentals.  For,  by  the 
original  contract  of  government,  the  price  of  protection  by  the  united 
force  of  individuals  is  that  of  obedience  to  the  united  will  of  the  com- 
munity. This  united  will  is  declared  in  the  laws  of  the  land:  and  that 
united  force  is  exerted  in  their  due,  and  universal,  execution. 

II.  I  am  next  to  inquire,  to  what  persons  the  benefit  of  clergy  is  to  lie 
allowed  at  this  day:  and  this  must  be  chiefly  collected  from  what  has 
been  observed  in  the  preceding  [372]  article.  For,  upon  the  whole,  we 
may  pronounce,  that  all  clerks  in  orders  are,  without  any  branding,  and 
of  course  without  any  transportation,  fine,  or  whipping  for  those  are 
only  substituted  in  lieu  of  the  other),  to  be  admitted  to  this  privilege, 
and  immediately  discharged;  and  this  as  often  as  they  offend  J  Again, 
all  lords  of  parliament  and  peers  of  the  realm  having  place  and  voice 
in  parliament,  by  the  statute  1  Edw.  VI.  c.  12  (which  is  likewise  held  to 
extend  to  peeresses),**  shall  be  discharged  in  all  clergyable  and  other 
felonies  provided  for  by  the  act,  without  any  burning  in  the  hand  or 
imprisonment,  or  other  punishment  susbtituted  in  its  stead,  in  the  same 
manner  as  real  clerks  convict:  but  this  is  only  for  the  first  offence. 
Lastly,  all  the  commons  of  the  realm,  not  in  orders,  whether  male  or 
female,  shall  for  the  first  offence  be  discharged  of  the  capital  punishment 
of  felonies  within  the  benefit  of  clergy,  upon  being  burnt  in  the  hand, 
whipped,  or  fined,  or  suffering  a  discretionary  imprisonment  in  the  com- 
mon gaol,  the  house  of  correction,  one  of  the  penitentiary  houses,  or  in  the 
places  of  labour  for  the  benefit  of  some  navigation;  or,  in  case  of  larceny, 
i:pon  being  transported  for  seven  years,  if  the  court  shall  think  proper. 
It  hath  been  said,  that  Jews,  and  other  infidels  and  heretics,  were  not 
capable  of  the  benefit  of  clergy,  till  after  the  statute  5  Ann.  c.  6,  as  being 
under  a  legal  incapacity  for  orders."  But  I  much  question  whether  this 
was  ever  ruled  for  law,  since  the  re-introduction  of  the  Jews  into  Eng- 
land, in  the  time  of  Oliver  Cromwell.  For,  if  that  were  the  case,  the 
Jews  are  still  in  the  same  predicament,  which  every  day's  experience 
will  contradict:  the  statute  of  queen  Anne  having  certainly  made  no  al- 
teration in  this  respect;  it  only  dispensing  with  the  necessity  of  read- 
ing in  those  persons,  who,  in  case  they  could  read,  were  before  the  act 
entitled  to  the  benefit  of  their  clergy. 

III.  The  third  point  to  be  considered  is,  for  what  crimes  the  privilcgium 
clericalr,  or  benefit  of  clergy,  is  to  be  allowed.  And,  it  is  to  be  observed, 
that  neither  in  high  treason  nor  in  petit  larceny,  nor  in  any  mere  mis- 
demeanors, it  was  indulged  at  the  common  law;  and  therefore  we  may 
lay  it  down  for  a  rule  that  it  was  allowable  only  in  petit  treason  and 
capital  felonies:  which  for  the  most  part  became  legally  entitled  to  this 

7.  2  Hal.  P.  C.  375.  9.  2   Hal.   P.   C.   373;    S  Hawk.   P. 

8.  Duciiess    of    Kingston's    case    in      C.  338;  P'ost.  306. 
Parliament,  22  Apr.  1776. 


Chap.  XXVIII.]     Of  Benefit  of  Clergy.  789 

[373]  indulgence  by  the  statute  de  clero,  25  Edw.  III.  st.  3,  c.  4,  which 
provides  that  clerks  convict  for  treasons  or  felonies,  touching  other  per- 
sons than  the  liing  himself  or  his  royal  majesty,  shall  have  the  privi- 
lege of  holy  church.  But  yet  it  was  not  allowable  in  all  felonies  what- 
soever: for  in  some  it  was  denied  even  by  the  common  law,  viz.,  insidiatio 
viarnm,  or  lying  in  wait  for  one  on  the  highway;  depopnlatio  agrorum,  or 
destroying  and  ravaging  a  country;  i  and  combustio  domorum,  or  arson, 
that  is,  the  burning  of  houses:  2  all  which  are  a  kind  of  hostile  acts, 
and  in  some  degree  border  upon  treason.  And  farther,  all  these  identical 
crimes,  together  with  petit  treason,  and  very  many  other  acts  of  felony, 
are  ousted  of  clergy  by  particular  acts  of  parliament;  which  have  in 
general  been  mentioned  under  the  particular  offences  to  which  they  btj- 
long,  and  therefore  need  not  be  here  recapitulated.  Upon  all  which  stat- 
utes for  excluding  clergy  I  shall  only  observe,  that  they  are  nothijig 
else  but  the  restoring  of  the  law,  to  the  same  rigor  of  capital  punishment 
in  the  first  offence,  that  is  exerted  before  the  privilegium  clericals,  was  at 
all  indulged;  and  which  it  still  exerts  upon  a  second  offence  in  almost 
all  kinds  of  felonies,  unless  committed  by  clerks  actually  in  orders.  But 
so  tender  is  the  law  of  inflicting  capital  punishment  in  the  first  instance 
for  any  inferior  felony,  that  notwithstanding  by  the  marine  law,  as  de- 
clared in  statute  28  Hen.  VIII.  c.  15,  the  benefit  of  clergy  is  not  allowed 
in  any  case  whatsoever;  yet,  when  offences  are  committed  within  the 
admiralty-jurisdiction,  which  would  be  clergyable  if  committed  by  land, 
the  constant  course  is  to  acquit  and  discharge  the  prisoner.^  And,  to 
conclude  this  head  of  inquiry,  we  may  observe  the  following  rules:  1. 
That  in  all  felonies,  whether  new  created  or  by  common  law,  clergy  is 
now  allowable,  unless  taken  away  by  express  words  of  an  act  of  parlia- 
ment.'* 2.  That,  where  clergy  is  taken  away  from  the  principal,  it  is 
not  of  course  taken  away  from  the  accessary,  unless  he  be  also  par- 
ticularly included  in  the  words  of  the  statute^  3.  That  when  the  benefit 
of  clergj'  is  taken  away  from  the  offence  (as  in  case  of  murder,  buggery, 
robbery,  rape,  and  burglary),  a  principal  in  the  second  degree  being 
present,  aiding  and  abetting  the  crime,  is  as  well  [374]  excluded  from 
his  clergy  as  he  that  is  principal  in  the  first  degree:  but,  4.  That,  where 
it  is  only  taken  away  from  the  person  committing  the  offence  (as  in  the 
case  of  stabbing,  or  committing  larceny  in  a  dwelling-house,  or  privately 
from  the  person),  his  aider  and  abettors  are  not  excluded;  though  the 
tenderness  of  the  law,  which  hath  determined  that  such  statutes  shall 
be  taken  literally.^ 

IV.  Lastly,  we  are  to  inquire  what  the  consequences  are  to  the  party. 


1.  2  Hal.  P.  C.  333.  manner    as    if    committed    on    shore; 

2.  1  Hal.  P.  C.  346.  and  see  the  43  Geo.  III.,  c.  113,  a.  G, 

3.  Moor,  756;  Fost.  288.     But  now,  56  Geo.  III.,  c.  27,  s.  3. 
by  39   Geo.   III.,   c.   37,   offences  com-  4.  2  Hal.  P.  C.  330. 
mitted    on    the   high    seas    are   to    be  5.  2  Hawk.  P.  C.  342. 
considered   and   treated    in   the   same  6.  1  Hal.  P.  C.  529;  Fost.  356,  357. 


790  Of  Benefit  of  Clebgy.  [Book  IV, 

of  allowing  him  this  benefit  of  clergy.  I  speak  not  of  the  branding,  fine» 
whipping,  imprisonment,  or  transportation;  which  are  rather  concomit- 
ant conditions,  than  consequences  of  receiving  this  indulgence.  The 
consequences  are  such  as  affect  his  present  interesit,  and  future  credit 
and  capacity:  as  having  been  once  a  felon,  but  now  purged  from  that 
guilt  by  the  privilege  of  clergy;  which  operates  as  a  kind  of  statute 
pardon. 

And,  we  may  observe,  1.  That  by  this  conviction  he  forfeits  all  his 
goods  to  the  king;  which  being  once  vested  in  the  crown,  shall  not  after- 
wards be  restored  to  the  offender.^  2.  That,  after  conviction,  and  till  he 
receives  the  judgment  of  the  law,  by  branding,  or  some  of  its  substitutes, 
or  else  is  pardoned  by  the  king,  he  is  to  all  intents  and  purposes  a  felon, 
and  subject  to  all  the  disabilities  and  other  incidents  of  a  felon.^  3. 
That  after  burning,  or  its  subsititute,  or  pardon,  he  is  discharged  for  ever 
of  that,  and  all  other  felonies  before  committed,  within  the  benefit  of 
clergy;  but  not  of  felonies  from  which  such  benefit  Is  excluded:  and  this 
by  statutes  8  Eliz.  c.  4,  and  18  Eliz.  c.  7.  4.  That  by  burning,  or  its 
substitute,  or  the  pardon  of  it,  he  is  restored  to  all  capacities  and  credits, 
and  the  possession  of  his  lands,  as  if  he  had  never  been  convicted.^  5.  That 
what  is  said  with  regard  to  the  advantages  of  commoners  and  laymen, 
subsequent  to  the  burning  in  the  hand,  is  equally  applicable  to  all  peers 
and  clergymen,  although  never  branded  at  all,  or  subjected  to  other  pun- 
ishment in  its  stead.  For  they  have  the  same  privileges,  without  any 
burning,  or  any  substitute  fer  it,  which  others  are  entitled  to  after  it.^ 

7.  2  Hal.  P,  C.  388.  on  the  first  day  of  the  (then)  present 

8.  3  P.  Wms.  487,  session  of   parliament,   or   which   has 

9.  2  Hal.  P.  C.  389;  5  Rep.  110.  been  or  shall  be  made  punishable  with 
1.  2  Hal.  P.  C.  389,  390.  death  by  some  statute  passed  after 
The  various  statutes  mentioned  in      that  day. 

the  course  of  this  chapter,  as  relating  The  6  Geo.  IV.,  c.  25,  entitled,  "An 
to  benefit  of  clergy,  have  been  either  Act  for  defining  the  rights  of  capital 
expressly  repealed,  or  rendered  inop-  convicts  who  receive  pardon,  and  of 
erative,  by  the  passing  of  the  recent  convicts  after  having  been  punished 
statute,  7  and  8  Geo.  IV.,  c.  28;  §  6  for  clergyable  felonies;  for  placing 
of  which  enacts,  that  benefit  of  clergy,  clerks  in  orders  on  tlie  same  footing 
with  respect  to  persons  convicted  of  with  other  persons  as  to  felonies; 
felony,  shall  be  abolished;  but  that  and  for  limiting  the  pfi'ect  of  the  benc- 
nothing  therein  contained  shall  pre-  fit  of  clergy;  "  had  previously  en- 
vent  the  joinder  in  any  indictment  of  acted,  by  section  1.  that  in  case  of 
any  counts  which  might  have  been  free  pardons,  the  prisoner's  discharge, 
joined  before  the  passing  of  the  Act.  and  in  case  of  conditional  pardons. 
Section  7  of  the  same  statute  en-  the  performance  of  the  condition, 
acts,  that  no  person  convicted  of  fel-  should  have  the  eff'ect  of  a  pardon 
ony  shall  suff"er  death,  unless  it  be  under  the  great  seal;  by  section  2, 
for  some  felony  which  was  excluded  that  ofi"enders  convicted  of  clergyable 
from  the  benefit  of  clergy  before,  or  felonies  enduring  the  punishment  ad- 


Chap.  XXIX.]  Of  Judgment.  791 

CHAPTEE  XXIX. 

OF   JUDGMENT   AND   ITS   CONSEQUENCES. 

When  upon  a  capital  charge  the  jury  have  brought  in 
their  verdict  guilty,  in  the  presence  of  the  prisoner,  he  is 
either  immediately  or  at  a  convenient  time  soon  after  asked 
by  the  court  if  he  has  anything  to  offer  why  judgment 
should  not  be  awarded  against  him.^  [375]  And  in  case 
the  defendant  be  found  guilty  of  a  misdemeanor  (the  trial 
of  which  may,  and  does  usually,  happen  in  his  absence, 
after  he  has  once  appeared),  a  cajrias  is  awarded  and  issued 
to  bring  him  in  to  receive  his  judgment,  and  if  he  absconds 
he  may  be  prosecuted  even  to  outlawry.  But  whenever  he 
appears  in  person,  upon  either  a  capital  or  inferior  convic- 
tion, he  may  at  this  period  as  well  as  at  his  arraignment 
offer  any  exceptions  to  the  indictment  in  arrest  or  stay  of 
judgment,^  as  for  want  of  sufficient  certainty  in  setting 
forth  either  the  person,  the  time,  the  place,  or  the  offence. 
And  if  the  objections  be  valid,  the  whole  proceedings  shall 
be  set  aside;  but  the  party  may  be  indicted  again.  And 
we  may  take  notice,  1.  That  none  of  the  statutes  of  jeofails, 
for  amendment  of  errors,  extend  to  indictments^  or  pro- 
judged,  such  punishment  should  have  Ball  v.  U.  S.,  140  U.  S.  118;  Mesoner 
the  effect  of  burning  in  the  hand;  by  v.  People,  45  N.  Y.  1.  There  are  cases 
section  3,  that  clerks  should  be  liable  contra,  where  defendant  was  repre- 
to  punishment,  as  if  not  in  orders;  sented  by  counsel.  Clark's  Crim. 
and  by  section  4,  that  the  allowance  Proced.  494  and  cases  cited  in  note, 
of  the  benefit  of  clergy  to  any  person  2.  Tlie   method   of   reviewing  crim- 

who  should,  after  the  passing  of  that  inal  trials  varies  in  different  jurisdic- 
Act,  be  convicted  of  any  felony,  should  tions.  Generally,  a  motion  for  a  new 
not  render  the  person  to  whom  such  trial  and  in  arrest  of  judgment  is 
benefit  was  allowed,  dispunishable  for  made  and  if  overruled  a  bill  of  ex- 
any  other  felony,  by  him  or  her  com-  ceptions  is  settled  and  the  case  re- 
mitted before  the  time  of  such  allow-  viewed  on  a  writ  of  error  or  appeal, 
ance,  any  law,  custom,  or  usage,  to  Consult  the  local  statutes  and  works 
the  contrary,  notwithstanding.  on  Criminal  Law. 

1.  As   a   rule   if   this   formality    is  3.  At  common  law  an  information 

omitted,  the  judgment  will  be  set  could  be  amended  by  leave  of  court; 
aside.      Clark's    Crim.    Proced.,    494;      but  an  indictment  being  a  finding  by 


792  Of  Judgment.  [Book  IV. 

ceedings  in  criminal  cases,  and  therefore  a  defective  indict- 
ment is  not  aided  by  a  verdict,  as  defective  pleadings  in 
civil  cases  are.  [376]  2.  That  in  favor  of  life  great  strict- 
ness has  at  all  times  been  observed  in  every  point  of  an 
indictment. 

A  pardon  also  may  be  pleaded  in  arrest  of  judgment,  and 
it  has  the  same  advantage  when  pleaded  here  as  when 
pleaded  upon  arraignment:  viz.,  the  saving  the  attainder, 
and  of  course  the  corruption  of  blood,*  which  nothing  can 
restore  but  parliament  when  a  pardon  is  not  pleaded  till 
after  sentence. 

Praying  the  benefit  of  clergy  may  also  be  ranked  among  the  motions 
in  arrest  of  judgment. 

If  all  these  resources  fail,  the  court  must  pronounce  that 
judgment  which  the  law  hath  annexed  to  the  crime. 

When  sentence  of  death  is  -pronounced,  the  immediate 
inseparable  consequence  from  the  common  law  is  attainder.'^ 

[380] 

He  is  then  called  attaint,  attlnrtus,  stained  or  blackened.  He  is  no 
longer  of  any  credit  or  reputation;  he  cannot  be  a  witness  in  any  court, 
neither  is  he  capable  of  performing  the  functions  of  another  man;  for, 
by  anticipation  of  his  punishment,  he  is  already  dead  in  law.  This  is 
after  judgment,  for  there  is  great  difference  be. ween  a  man  convicted 
and  attainted.  After  conviction  only,  a  man  is  liable  to  none  of  these 
disabilities,  for  there  is  still  in  contemplation  of  law  a  possibility  of  his 
innocence.  [381]  Something  may  be  offered  in  arrest  of  judgment;  the 
indictment  may  be  erroneous,  which  will  render  his  guilt  uncertain,  and 
thereupon  the  present  conviction  may  be  quashed;  he  may  obtain  a 
pardon,  or  be  allowed  the  benefit  of  clergy.  Upon  judgment  of  death,  and 
not  before,  the  attainder  of  a  criminal  commences;  or  upon  such  cir- 
cumstances as  are  equivalent  to  judgment  of  death,  as  judgment  of  out- 
lawry on  a  capital  crime,  pronounced  for  absconding  or  fleeing  from 
justice,   which  tacitly  confesses   the   guilt.     And   therefore   either   upon 

a  grand  jury  an  oath  could  not  be  4.  Attainder  and  corruption  of  blood 

so  amended  at  least  not  in  matter  ot      have  been   abolished   in   England  and 
substance.  Clark's  Crim.  Proced.,  315;       never  existed  in  tlie  United  States. 
Patrick   v.   People,   132   111.   529  j   Ev 
j)artc  Bain,  121  U.  S.  1. 


Chap.  XXIX.]  Of  Judgment.  793 

judgment  of  outlawry  or  of  death,  for  treason  or  felony,  a  man  shall 
be  said  to  be  attainted. 
The  consequeuces  of  attainder  are  forfeiture  and  corruption  of  blood. 

[Not  applicable  to  this  country.] 

I.  Forfeiture  is  twofold,  of  real  and  personal  estates.  First,  as  to  real 
estates:  by  atitainder  in  high  treason  a  man  forfeits  to  the  king  all  his 
lands  and  tenements  of  inheritance,  whether  fee-simple  or  fee-tail,  and 
all  his  rights  of  entry  on  lands  or  tenements  which  he  had  at  the  time 
of  the  offence  committed,  or  at  any  time  afterwards,  to  be  forever  vested 
in  the  crown;  and  also  the  profits  of  all  lands  and  tenements  which  he 
had  in  his  own  right  for  life  or  years,  so  long  as  such  interest  shall 
subsist.  This  forfeiture  relates  backwards  to  the  time  of  the  treason 
committed,  so  as  to  avoid  all  intermediate  sales  and  incumbrances,  but 
not  those  before  the  fact. 

In  petit  treason  and  felony  the  offender  also  forfeits  all  his  chattel 
interests  absolutely,  and  the  profits  of  all  estates  of  freehold  during  life, 
and  after  his  death  all  his  lands  and  tenements  in  fee  simple  (but  not 
those  in  tail)  to  the  crown,  for  a  very  short  period  of  time;  for  the  king 
shall  have  them  for  a  year  and  a  day,  and  may  commit  therein  what 
waste  he  pleases,  which  is  called  the  king's  year,  day,  and  waste.  [385] 
This  year,  day,  and  waste  are  now  usually  compounded  for;  but  other- 
wise they  regularly  belong  to  the  crown,  and  after  their  expira/tion  the 
land  would  have  naturally  descended  to  the  heir  (as  in  gavelkind  tenure 
it  still  does) ,  did  not  its  feodal  quality  intercept  'such  descent  and  give 
it  by  way  of  esclieat  to  the  lord.  [386]  These  forfeitures  for  felony  do 
also  arise  only  upon  attainder,  and  therefore  a  fclo  de  se  forfeits  no  land 
of  inheritance  or  freehold,  for  he  never  is  attainted  as  a  felon.  They 
likewise  relate  back  to  the  time  of  the  offence  committed  as  well  as  for- 
feitures for  treason,  so  as  to  avoid  all  intermediate  charges  and  con- 
veyances. 

The  forefeiture  of  goods  and  chattels  accrues  in  every  one  of  the  higher 
kinds  of  offence;  in  high  treason  or  misprision  thereof,  petit  treason,  felo- 
nies of  all  sorts,  whether  clergyable  or  not,  self-murder  or  felony  de  se, 
petit  larceny,  standing  mute,  and  the  offences  of  striking,  etc.,  in  West- 
minster Hall.  [387]  For  flight  also,  on  an  accusation  of  treason,  felony, 
or  even  petit  larceny,  whether  the  party  be  found  guilty  or  acquitted, 
if  the  jury  find  the  flight  the  party  shall  forfeit  his  goods  and  chattels. 

There  is  a  remarkable  difference  or  two  between  the  forfeiture  of  lands 
and  of  goods  and  chattels.  1.  Lands  are  forfeited  upon  attainder,  and 
not  before;  goods  and  chattels  are  forfeited  by  conviction.  2.  In  out- 
lawries for  treason  or  felony,  lands  are  forfeited  only  by  the  judgment; 
but  the  goods  and  chattels  are  forfeited  by  a  man's  being  first  put  in  the 
exigent,  without  staying  till  he  is  quinto  exactus,  or  finally  outlawed,  for 
the  secreting  himself  so  long  from  jus;ice  is  construed  a  flight  in  law. 
The  forfeiture  of  lands  has  relation  to  the  time  of  the  fact  committed, 
so  as  to  avoid  all  subsequent  sales  and  incumbrances;  but  the  forfeiture 


794  Of  Judgment.  [Book  IV. 

of  goods  and  chattels  has  no  relation  backwards,   so  that  those  only 
which  a  man  has  at  the  time  of  conviction  shall  be  forfeited. 

II.  Another  immediate  consequence  of  attainder  is  the  corruption  of 
blood,  both  upwards  and  downwards;  so  that  an  attainted  person  can 
neither  inherit  lands  or  other  hereditaments  from  his  ancestors,  nor  re- 
tain those  he  is  already  in  possession  of,  nor  transmit  them  by  descent 
to  any  heir,  but  the  same  shall  escheat  to  the  lord  of  the  fee,  subject  to 
the  king's  superior  right  of  forfeiture.  And  the  person  attainted  shall 
also  obstruct  all  descents  to  his  posterity,  wherever  they  are  obliged  to 
derive  a  title  through  him  to  a  remoter  ancestor.  [388] 


Ohap.  XXX.]       Of  Reversal  of  Judgment.  795 

CHAPTER  XXX. 

OF  REVERSAL  OF  JUDGMENT. 

Judgments,  with  their  several  connected  consequences  of 
attainder,  forfeiture,  and  corruption  of  blood,  may  be  set 
aside,  either  by  falsifying  or  reversing  the  judgment,  or  else 
by  reprieve  or  pardon.  [390] 

A  judgment  may  be  falsified,  reversed,  or  avoided,  in  the 
first  place,  without  a  writ  of  error,  for  matters  foreign  to 
or  dehors  the  record,  that  is,  not  apparent  upon  the  face  of 
it,  so  that  they  cannot  be  assigned  for  error  in  the  superior 
court,  which  can  only  judge  from  vsrhat  appears  in  the 
record  itself,  and,  therefore,  if  the  whole  record  be  not  certi- 
fied, or  not  truly  certified  by  the  inferior  court,  the  party 
injured  thereby  (in  both  civil  and  criminal  cases)  may 
allege  a  diminution  of  the  record,  and  cause  it  to  be  recti- 
fied.^ Thus,  if  any  judgment  whatever  be  given  by  persons 
who  had  no  good  commission  to  proceed  against  the  person 
condemned,  it  is  void,  and  may  be  falsified,  by  showing  the 
special  matter,  without  writ  of  error.^ 

So  likewise  if  a  man  purchases  land  of  another,  and  afterwards  the 
vendor  is,  either  by  outlawry  or  his  own  confession,  convicted  and  at- 
tainted of  treason  or  felony  previous  to  the  sale  or  alienation,  whereby 
such  land  becomes  liable  to  forfeiture  or  escheat,  now  upon  any  trial 
the  purchaser  is  at  liberty,  without  bringing  any  writ  of  error,  to  falsify 
not  only  the  time  of  the  felony  or  treason  supposed,  but  the  very  point 
of  the  felony  or  treason  itself,  and  is  not  concluded  by  the  confession  or 
the  outlawry  of  the  vendor,  though  the  vendor  himself  is  concluded,  and 
not  suffered  jiow  to  deny  the  fact  which  he  has  by  confession  or  flight 
acknowledged.  [391]  But  if  such  attainder  of  the  vendor  was  by  verdict 
on  the  oath  of  his  peers,  the  alienee  cannot  be  received  to  falsify  or  con- 
tradict the  fact  of  the  crime  committed,  though  he  is  at  liberty  to  prove 
a  mistake  in  time,  or  that  the  offence  was'  committed  after  the  aliena- 
tion, and  not  before. 

1.  Not  an  uncommon  proceeding  in  ous  must  by  some  direct  proceeding 
this  country.  such  as   a  writ  of  error  be  reversed 

2.  A  judgment  or  decree  that  is  on  appeal  and  is  binding  till  so  re- 
void    may    be    attacked    collaterally;  versed. 

one  that  is  merely  voidable  or  errone- 


796  Of  Refusal  of  Judgment.  [Book  IV. 

Secondly,  a  judgment  may  be  reversed  by  writ  of  error,'* 
which  lies  from  all  inferior  criminal  jurisdictions  to  the 
Court  of  King's  Bench,  and  from  the  King's  Bench  to  the 
House  of  Peers,  and  may  be  brought  for  notorious  mistakes 
in  the  judgment  or  other  parts  of  the  record,  as  where  a  man 
is  found  guilty  of  perjury  and  receives  the  judgment  of 
felony,  or  for  other  less  palpable  errors. 

These  writs  of  error,  to  reverse  judgment  in  case  of  misdemeanors,  are 
not  to  be  allowed  of  course,  but  on  sufficient  probable  cause  shown  to 
the  Attorney-General,  and  then  they  are  understood  to  be  grantable  of 
common  right  and  ex  debito  justitiac.  [392]  But  writs  of  error  to  reverse 
attainders  in  capital  cases  are  only  allowed  ex  gratia,  and  not  withoat 
express  warrant  under  the  king's  sign  manual,  or  at  least  by  the  consent 
of  the  Attorney-General.  These,  therefore,  can  rarely  be  brought  by  the 
party  himself,  especially  where  he  is  attainted  for  an  offence  against  the 
state;  but  they  may  be  brought  by  his  heir  or  executor,  after  his  death, 
in  more  favorable  times,  which  may  be  some  consolation  to  his  family. 
But  the  easier  and  more  effectual  way  is, 

Lasth/,  to  rcTerse  the  attainder  by  act  of  parliament. 

The  effect  of  falsifying  or  reversing  an  outlawry  is  that  the  party  shall 
be  in  the  same  plight  as  if  he  had  appeared  upon  the  capias,  and  if  it  be 
before  plea  pleaded,  he  shall  be  put  to  plea  to  the  indictment,  if  after 
conviction,  he  shall  receive  the  sentence  of  the  law;  for  all  the  other 
proceedings,  except  only  the  process  of  outlawry  or  his  non-appearance, 
remain  good  and  effectual  as  before.  • 

But  when  judgment,  pronounced  upon  conviction,  is 
falsified  or  reversed,*  all  former  proceedings  are  absolutely 
set  aside,  and  the  party  stands  as  if  he  had  never  been  at 
all  accused,  restored  in  his  credit,  his  capacity,  his  blood, 
and  his  estates;  with  regard  to  which  last,  though  they  may 
be  granted  away  by  the  crown,  yet  the  owner,  may  enter 
upon  the  grantee  with  as  little  ceremony  as  he  might  enter 
upon  a  disseisor.  [393]  But  he  still  remains  liable  to 
another  prosecution  for  the  same  offence,  for,  the  first  being 
erroneous,  he  never  was  in  jeopardy  thereby. 

3.  See  preceding  note.  the  case  to  the  court  below  for  a  new 

4.  When  a  judgment  is  reversed  for  trial;  although  at  times  the  judgment 
error,  the  usual  practice  is  to  remand      is  simply  reversed. 


Chap.  XXXI.]       Of  Reprieve  and  Pardon.  797 

CHAPTER  XXXI. 

OF  REPRIEVE  AND  PARDON. 

The  only  other  remaining  ways  of  avoiding  the  execution 
of  the  judgment  are  by  a  reprieve  or  a  pardon,  whereof  the 
former  is  temporary  only,  the  latter  permanent.  [394] 

I.  A  reprive,  from  reprendre,  to  take  back,  is  the  with- 
drawing of  a  sentence  for  an  interval  of  time,  whereby  the 
execution  is  suspended.  This  may  be,  first,  ex  arbitrio 
judicis,^  either  before  or  after  judgment:  as  where  the  judge 
is  not  satisfied  with  the  verdict,  or  the  evidence  is  suspici- 
ous, or  the  indictment  is  insufficient,  or  he  is  doubtful 
whether  the  offence  be  within  clergy;  or  sometimes,  if  it  be 
a  small  felony,  or  any  favorable  circumstances  appear  in  the 
criminal's  character,  in  order  to  give  room  to  apply  to  the 
crown  for  either  an  absolute  or  conditional  pardon. 

Reprieves  may  be  ex  necessitate  legis,^  as  where  a  woman 
is  capitally  convicted  and  pleads  her  pregnancy:  tjiough 
this  is  no  cause  to  stay  the  judgment,  yet  it  is  to  respite  the 
execution  till  she  be  delivered. 

Another  cause  of  regular  reprieve  is,  if  the  offender  be- 
comes non  compos  between  the  judgment  and  the  award  of 
execution.  For  regularly,  though  a  man  be  compos  when  he 
commits  a  capital  crime,  yet  if  he  becomes  non  compos  after, 
he  shall  not  be  indicted;  if  after  indictment,  he  shall  not  be 
convicted ;  if  after  conviction,  he  shall  not  receive  judgment ; 
if  after  judgment,  he  shall  not  be  ordered  for  execution ;  for 
^^  furiosus  solo  furore  punUur,"^  and  the  law  knows  not  but  he 
might  have  offered  some  reason,  if  in  his  senses,  to  have  stayed 
these  respective  proceedings.  [396]  It  is  therefore  an  invari- 
able rule,  when  any  time  intervenes  between  the  attainder  and 
the  award  of  execution,  to  demand  of  the  prisoner  what  he 
hath  to  allege  why  execution  should  not  be  awarded  against 
him;  and  if  he  appears  to  be  insane,  the  judge  in  his  dis- 
cretion may  and  ought  to  reprieve  him.     Or  the  party  may 

1.  At  the  will  of  the  judge.  3.  A   madman    is   punished   by    hi* 

2.  From  necessity  of  law.  madness  alone. 


798  Of  Reprieve  and  Pardon.  [Book  IV. 

plead  in  bar  of  execution,  which  plea  may  be  either  preg- 
nancy, the  king's  pardon,  an  act  of  grace,  or  diversity  of 
person,  viz.,  that  he  is  not  the  same  as  was  attainted,  and 
the  like.  In  this  last  case  a  jury  shall  be  impanelled  to  try 
this  collateral  issuCj  namely,  the  identity  of  his  person ;  and 
not  whether  guilty  or  innocent,  for  that  has^een  decided 
before.  And  in  these  collateral  issues  the  trial  shall  be 
instanter,  and  no  time  allowed  the  prisoner  to  make  his  de- 
fence or  produce  his  witnesses,  unless  he  will  make  oath 
that  he  is  not  the  person  attainted;  neither  shall  any  per- 
emptory challenges  of  the  jury  be  allowed  the  prisoner, 
though  formerly  such  challenges  were  held  to  be  allowable 
whenever  a  man's  life  was  in  question, 

II.  If  neither  pregnancy,  insanity,  non-identity,  nor  other 
plea  will  avail  to  avoid  the  judgment  and  stay  the  execution 
consequent  thereupon,  the  last  and  surest  resort  is  in  the 
king's  most  gracious  pardon.^ 

1.  And  first,  the  king  may  pardon  all  offences  merely 
against  the  crown  or  the  public;  excepting,  1.  That,  to  pre- 
serve the  liberty  of  the  subject,  the  committing  any  man  to 
prison  out  of  the  realm  is  by  the  habeas  corpus  actj  31  Car. 
II.  c.  2,  made  a  praeminiirc,  unj)ardonable  even  by  the  king. 
Nor,  2.  Can  the  king  pardon  where  private  justice  is  prin- 
cipally concerned  in  the  prosecution  of  offenders.  [398] 
Therefore  he  cannot  pardon  a  common  nuisance  while  it 
remains  unredressed,  or  so  as  to  prevent  an  abatement  of 
it,  though  afterwards  he  may  remit  the  fine;  because,  though 
the  prosecution  is  vested  in  the  king  to  avoid  multiplicity 
of  suits,  yet  (during  its  continuance)  this  offence  savors 
more  of  the  nature  of  a  private  injury  to  each  individual  in 
the  neighborhood  than  of  a  piihlic  wrong.  [399]  Neither, 
lastly,  can  the  king  pardon  an  offence  against  a  popular  or 
penal  statute,  after  information  brought,  for  thereby  the 
informer  hath  acquired  a  private  property  in  his  part  of  the 
penalty. 

4.  In  Massacliusctts,  Illinois  and  others  of  tlie  several  states  it  is  corn- 
some  other  states  the  executive  may  petent  for  the  executive  to  pardon 
only  pardon  after  conviction;  but  in  before  trial.  Wash.  Crim.  Law  (3d 
the    United    States    jurisdiction    and  Ed.),  204.     See  ante,  note. 


Chap.  XXXI.]       Of  Reprieve  and  Pardon.  799 

There  is  also  a  restriction  of  a  peculiar  nature  that  affects 
the  prerogative  of  pardoning,  in  case  of  parliamentary  im- 
peachments, viz.,  that  the  king^s  pardon  cannot  be  pleaded 
to  any  such  impeachment,  so  as  to  impede  the  inquiry  and 
stop  the  prosecution  of  great  and  notorious  offenders.^  But 
after  the  impeachment  has  been  solemnly  heard  and  deter- 
mined, it  is  not  understood  that  the  king's  royal  grace  is 
further  restrained  or  abridged.   [400] 

2.  As  to  the  manner  of  pardoning.^  (1)  First,  it  must  be 
under  the  Great  Seal.  A  warrant  under  the  privy  seal  or 
sign  manual,  though  it  may  be  a  sufficient  authority  to 
admit  the  party  to  bail,  in  order  to  plead  the  king's  pardon 
when  obtained  in  proper  form,  yet  is  not  of  itself  a  complete 
irrevocable  pardon.  (2)  Next,  it  is  a  general  rule  that, 
wherever  it  may  reasonably  be  presumed  the  king  is  de- 
ceived, the  pardon  is  void.  Therefore  any  suppression  of 
truth  or  suggestion  of  falsehood  in  a  charter  of  pardon  will 
vitiate  the  whole, for  the  king  was  misinformed.  (3)  General 
words  have  also  a  very  imperfect  effect  in  pardons.  A  pardon 
of  all  felonies  will  not  pardon  a  conviction  or  attainder  of 
felony  ( for  it  is  presumed  the  king  knew  not  of  those  proceed- 
ings), but  the  conviction  or  attainder  must  be  particularly 
mentioned ;  and  a  pardon  of  felonies  will  not  include  piracy, 
for  that  is  no  felony  punishable  at  the  common  law.  (4)  It  is 
also  enacted  by  statute  13  Eic.  II.  st.  2,  c.  1,  that  no  pardon 
for  treason,  murder,  or  rape  shall  be  allowed  unless  the 
offence  be  particularly  specified  therein,  and  particularly 
in  murder  it  shall  be  expressed  whether  it  was  committed 
by  lying  in  wait,  assault,  or  malice  prepense.  Under  these 
and  a  few  other  restrictions  it  is  a  general  rule  that  a 
pardon  shall  be  taken  most  beneficially  for  the  subject,  and 
most  strongly  against  the  king.  [401] 

A  pardon  may  also  be  conditional,^  that  is,  the  king  may 

5.  See  U.  S.  Const.,  art.  2,  sec.  2.  A  pardon  must  be  specially  pleaded 

6.  In  some  of  the  states  there  are  unless  it  is  granted  by  a  public  stat- 
Btatutes  regulating  the  manner  of  ute  of  which  the  court  must  take  ju- 
making  application  for  a  pardon.  Con-  dicial  notice.  Clark's  Crim.  Proced., 
suit  the  statutes.  407  and  cases  cited. 

7.  Wash.  Crim.  Law  (3d  Ed.),  204. 


800  Of  Reprieve  and  Pardon.  [Book  IT. 

extend  his  mercy  upon  what  terms  he  pleases,  and  may 
annex  to  his  bounty  a  condition  either  precedent  or  subse- 
quent, on  the  performance  whereof  the  validity  of  the 
pardon  will  depend;  and  this  by  the  common  law. 

3.  With  regard  to  the  manner  of  allowing  pardons,  we 
may  observe  that  a  pardon  by  act  of  parliament  is  more 
beneficial  than  by  the  king's  charter,  for  a  man  is  not  bound 
to  plead  it,  but  the  court  must  ex-officio  take  notice  of  it; 
neither  can  he  lose  the  benefit  of  it  by  his  own  laches  or 
negligence,  as  he  may  of  the  king's  charter  of  pardon.  [402] 
The  king 's  charter  of  pardon  must  be  specially  pleaded,  and 
that  at  a  proper  time;  for  if  a  man  is  indicted  and  has  a 
pardon  in  his  pocket,  and  afterwards  puts  himself  upon  his 
trial  by  pleading  the  general  issue,  he  has  waived  the  benefit 
of  such  pardon.  But  if  a  man  avails  himself  thereof  as 
soon  as  by  course  of  law  he  may,  a  pardon  may  either  be 
pleaded  upon  arraignment,  or  in  arrest  of  judgment,  or  in 
the  present  stage  of  proceedings,  in  bar  of  execution. 

4.  Lastly,  the  effect  of  such  pardon  by  the  king  is  to  make 
the  offender  a  new  man,  to  acquit  him  of  all  corporal  penal- 
ties and  forfeitures  annexed  to  that  offence  for  which  he 
obtains  his  pardon,  and  not  so  much  to  restore  his  former 
as  to  give  him  a  new  credit  and  capacity.®  But  nothing  can 
restore  or  purify  the  blood  when  once  corrupted,  if  the 
pardon  be  not  allowed  till  after  attainder,  but  the  high  and 
transcendent  power  of  parliament.  Yet  if  a  person  at- 
tainted receives  the  king's  pardon,  and  afterwards  hath  a 
son,  that  son  may  be  heir  to  his  father  [provided  he  has  no 
living  elder  brother  born  before  the  attainder] ,  because  the 
father,  being  made  a  new  man,  might  transmit  new  inherit- 
able blood,  though,  had  he  been  born  before  the  pardon,  he 
could  never  have  inherited  at  all. 

8.  Wash.  Crim.  Law  (3d  Ed.),  204. 


Chap.  XXXII.]  Of  Executiojt. 


801 


CHAPTER  XXXII. 

OF  EXECUTION. 

There  now  remains  nothing  to  speak  of  but  execution,  — 
the  completion  of  human  punishment.  And  this  in  all 
cases,  as  well  capital  as  otherwise,  must  be  performed  by 
the  legal  oflacer,  the  sheriff  or  his  deputy,  whose  warrant  for 
so  doing  was  anciently  by  precept  under  the  hand  and  seal 
of  the  judge;  as  it  is  still  practised  in  the  Court  of  the  Lord 
High  Steward  upon  the  execution  of  a  peer,  though  in  the 
court  of  the  peers  in  parliament  it  is  done  by  writ  from  the 
Mng.  [403]  Afterwards  it  was  established  that,  in  case  of 
life,  the  judge  may  command  execution  to  be  done  without 
any  writ.  And  now  the  usage  is  for  the  judge  to  sign  the 
calendar,  or  list  of  all  the  prisoners'  names,  with  their 
separate  judgments  in  the  margin,  which  is  left  with  the 
sheriff.  As,  for  a  capital  felony,  it  is  written  opposite  to 
the  prisoner's  name,  '^  Let  him  be  hanged  by  the  neck;  " 
formerly,  in  the  days  of  Latin  and  abbreviation,  '^  SU'%  per 
^o/."  for  " suspendatur  per  collum." '^  And  this  is  the  only 
warrant  that  the  sheriff  has  for  so  material  an  act  as  taking 
away  the  life  of  another.^ 

The  sheriff  cannot  alter  the  manner  of  the  execution  by 
substituting  one  death  for  another,  without  being  guilty 
of  felony  himself.  [404]  It  is  held  also  by  Sir  Edward  Coke 
and  Sir  Matthew  Hale  that  even  the  king  cannot  change 
the  punishment  of  the  law  by  altering  the  hanging  or  burn- 
ing into  beheading,  though  when  beheading  is  part  of  the 
sentence,  the  king  may  remit  the  rest.  [405]  And  notwith- 
standing some  examples  to  the  contrary,  Sir  Edward  Coke 
stoutly  maintains  that  "  judicandiim  est  lerjihus,  non  ex- 
cmplis."^     But  others  have  thought,  and  more  justly,  that 

1.  Let    him    be    suspended    by    the  ishment  for  crimes,  both  misdemean- 
neek.  ora  and  felonies,  is  prescribed  by  stat- 

2.  With  us  there  is  a  formal  death  ute  and   extends   from  a  simple   fine 
warrant.  with  costs  to  the  death  penalty.    Con- 

3.  Judgment  should  be  according  to  suit  the  statutes, 
the  laws,  not  by  examples.     Tlur  pun- 

51 


802  Of  Execution.  [Book  IV. 

this  prerogative,  being  founded  in  mercy,  and  immemorially 
exercised  by  the  crown,  is  part  of  the  common  law.  For 
hitherto,  in  every  instance,  all  these  exchanges  have  been 
for  more  merciful  kinds  of  death. 

To  conclude,  it  is  clear  that  if,  upon  judgment  to  be 
hanged  by  the  neck  till  he  is  dead,  the  criminal  be  not 
thoroughly  killed,  but  revives,  the  sheriff  must  hang  him 
again  [406] ;  for  the  former  hanging  was  no  execution  of 
the  sentence. 


APPENDIX  TO  BOOK  II. 


[These  appendices  give  an  insight  into  the  spirit  of  the 
old  system  that  can  be  obtained  in  no  other  way.  They  are, 
therefore,  retained  in  smaller  type. — M.  D.  E.] 


No.  I. 

VETUS  CARTA  FEOFFAMENTI. 

[Premises]  Sciant  presentes  et  futuri,  quod  ego  Willielmus,  filius  Willielmi 
de  Segenho,  dedi,  concessi,  et  hac  present!  carta  mea  confirmavi,  Johanni 
quondam  filio  Johannis  de  Saleford,  pro  quadam  summa  pecunie  quara  michi 
dedit  pre  manibus,  unam  acram  terre  mee  arabilis,  jacontem  in  campo  de 
Saleford,  juxta  terram  quondam  Richardi  de  la  Mere:  [Habendum,  &  Ten- 
endum.] Habendam  et  Tenendam  totam  predictam  acram  terre,  cum  omnibus 
ejus  pertinentiis,  prefato  Johanni,  et  heredibus  suis,  et  suis  assignatis,  de  capi- 
talibus  dominis  feodi:  [Reddendum.]  Reddendo  et  faciendo  annuatim  eisdem 
dominis  capitalibus  servitia  inde  debita  et  consueta:  [Warranty.]  Et  ego 
predictus  VVillielmus,  et  heredes  mei,  et  mei  assignati,  totain  predictam  acram 
terre,  cum  omnibus  suis  pertinentiis,  predicto  Johanni  de  Saleford,  et  heredibus 
suis,  et  suis  assignati,  contra  omnes  gentes  warrantizabimus  in  perpetuum. 
[Conclusion.]  In  cujus  rei  testimonium  huic  presenti  carte  sigillum  meum 
apposui :  Hiis  testibus,  Nigello  de  Saleford,  Johanne  de  Seybroke,  Radulpho 
clerico  de  Saleford,  Johanne  molendario  de  eadem  villa,  et  aliis.  Data  apud 
Saleford  die  Veneris  proximo  ante  festum  sancte  Margarete  virginis,  anno 
regni  regis  Edwardi  filii  regis  Edwardi  sexto. 

(L.  S.> 

[Livery  of  seisin  endorsed.]  Memorandum,  quod  die  et  anno  infra- 
scriptis  plena  et  pacifica  seisina  acre  infraspecificate,  cum  pertin- 
entiis, data  et  deliberata  fuit  per  infranominatum  Willielmum  de 
Segenho  infranominato  Johnanni  de  Saleford,  in  propriis  personis  suis, 
secundum  tenorem  et  eflfectum  carte  infrascripte,  in  presentia  Nigelli 
de  Saleford,  Johannis  de  Seybroke,  et  aliorum. 

No.  II.      . 

A  MODERN  CONVEYANCE  BY  LEASE  AND  RELEASE. 

Sect.  1.     Lease  or  Bargain  and  Sale,  for  a  Year. 

[Premises]  This  Indenture,  made  the  third  day  of  September,  in  the  twenty- 
first  year  of  the  reign  of  our  sovereign  lord  George  the  Second,  by  the  grace 
of  God,  king  of  Great  Britain,  France,  and  Ireland,  defender  of  the  faith,  and 
so  forth,  and  in  the  year  of  our  Lord  one  thousand  seven  hundred  and  forty- 
seven,  between  [Parties]  Abraham  Barker,  of  Dale  Hall,  in  the  county  of 
Norfolk,  esquire,  and  Cecilia  his  wife,  of  the  one  part,  and  David  Edwards,  of 
Lincoln's  Inn,  in  the  county  of  Middlesex,  esquire,  and  Francis  Golding,  of  the 

[803] 


804  Appjindix  to  Book  II. 

city  of  Xorwich,  clerk,  of  the  other  part,  witnesseth ;  that  the  said  Abraham 
Barker  and  Cecilia  his  wife  [Consideration],  in  consideration  of  live  shillings 
of  lawful  money  of  Great  Britain,  to  them  in  hand  paid  by  the  saki  David 
Edwards  and  Francis  Golding,  at,  or  before,  the  ensealing  and  delivery  of 
these  presents  (the  receipt  whereof  is  hereby  acknowledged),  and  for  other 
good  causes  and  considerations,  them  the  said  Abraham  Barker  and  Cecilia  his 
wife,  hereunto  specially  moving,  have  bargained  and  sold  [Bargain  and  sale], 
and  by  these  presents  do,  and  each  of  them  doth,  bargain  and  sell,  unto  the 
said  David  Edwards  and  Francis  Golding,  their  executors,  administrators,  and 
assigns  [Parcels],  All  that  the  capital  messuage,  called  Dale  Hall,  in  the  parish 
of  Dale,  in  the  said  county  of  Norfolk,  wherein  the  said  Abraham  Barker  and 
Cecilia  his  wife  now  dwell,  and  all  those  their  lands  in  the  said  parish  of  Dale, 
called  or  known  by  the  name  of  Wilson's  farm,  containing  by  estimation  live 
hundred  and  forty  acres,  be  the  same  more  or  less,  together  with  all  and 
singular  houses,  dove-houses,  barns,  buildings,  stables,  yards,  gardens,  orchards, 
lands,  tenements,  meadows,  pastures,  feedings,  commons,  woods,  underwoods, 
ways,  waters,  watercourses,  fishings,  privileges,  profits,  easements,  commodities, 
advantages,  emoluments,  hereditaments,  and  appurtenances  whatsoever  to  the 
said  capital  messuage  and  farm  belonging  or  appertaining,  or  with  the  same 
used  or  enjoyed,  or  accepted,  reputed,  taken,  or  known,  as  part,  parcel,  or 
member  thereof,  or  as  belonging  to  the  same,  or  any  part  thereof;  and  the 
reversion  and  reversions,  remainder  and  remainders,  yearly  and  other  rents, 
issues,  and  profits  thereof,  and  of  every  part  and  parcel  thereof:  [Habendum] 
To  have  and  to  hold  the  said  capital  messuage,  lands,  tenements,  heredita- 
ments, and  all  and  singular  other  the  premises  hereinbefore  mentioned,  or 
intended  to  be  bargained  and  sold,  and  every  part  and  parcel  thereof,  with 
hteir  and  every  of  their  rights,  members,  and  appurtenances,  unto  the  said 
David  Edwards  and  Francis  Golding,  their  executors,  administrators,  and 
assigns,  from  the  day  next  before  the  day  of  the  date  of  these  presents,  for  and 
during,  and  unto  the  full  end  and  term  of.  one  whole  year  from  thence  next 
ensuing,  and  fully  to  be  complete  and  ended:  [Reddendum]  Yielding  and  pay- 
ing, tiierefore,  unto  the  said  Abraham  Barker,  and  Cecilia  his  wife,  and  their 
heirs  and  assigns,  the  yearly  rent  of  one  pepper-corn  at  the  expiration  of  the 
said  term,  if  the  same  shall  be  lawfully  demanded:  [Intent]  To  the  intent 
and  purpose  that,  by  virtue  of  these  presents,  and  of  the  statute  for  trans- 
ferring uses  into  possession,  the  said  David  Edwards  and  Francis  Golding  may 
be  in  the  actual  possession  of  the  premises,  and  be  thereby  enabled  to  take  and 
accept  a  grant  and  release  of  the  freehold,  reversion,  and  inheritance  of  the 
same  premises,  and  of  every  part  and  parcel  thereof,  to  them,  their  heirs  and 
assigns;  to  the  uses  and  upon  the  trusts,  thereof  to  be  declared  by  another 
indenture,  intended  to  bear  date  the  next  day  after  the  day  of  the  date  hereof. 
[Conclusion]  In  loitness  whereof,  the  parties  to  these  presents  their  hands 
and  seals  have  subscribed  and  set,  the  day  and  year  first  above  written. 
Sealed    and    delivered,  being  *^  Abraham  Barker.     (L.  S.) 

first  duly   stamped,  in  the  I  Cecilia  Barker.  (L.  S.) 

presence  of  .     >  |  David  Edwards.        (L.  S.) 

George  Carter.    *  J  Francis  Golding.        (L.  S.) 

William  Browne. 

Sect.  2.    Deed  of  Rklease. 

[Premises]  This  Indenture  of  fivo  parts,  made  the  fourth  day  of  September, 
in  the  twenty-first  year  of  the  reigi.  of  our  sovereign  lord  George  the  Second, 
by  the  grace  of  God,  king  of  Great  Britain,  France,  and  Ireland,  defender  of 
the  faith,  and  so  forth,  and  in  the  year  of  our  Lord  one  thousand  seven  hun- 
dred and  forty-seven,  between  [Parties]  Abraham  Barker,  of  Dale  H^ll,  in  the 
county  of  Korflok,  esquire,  and  Cecilia  his  wife,  of  the  first  part;  David 
Edwards,  of  Lincoln's  Inn,  in  the  county  of  Middlesex,  esquire,  executor  of  the 
last  will  and  testament  of   Lewis   Edwards  of  Cowbridge,   in  the  county  of 


Appendix  to  Book  II.  805 

Glamorgan,  gentleman,  his  late  father,  deceased,  and  Francis  Holding  of  the 
city  of  Norwich,  clerk,  of  the  second  part;  Charles  Browne,  of  Enstone.  in  the 
county  of  Oxford,  gentleman,  and  Richard  More,  of  the  city  of  Bristol,  mer- 
chant, of  the  third  part;  John  Barker,  esquire,  son  and  heir  apparent  of  the 
said  Abraham  Barker,  of  the  fourth  part;  and  Katherine  Edwards,  spinster, 
one  of  the  sisters  of  the  said  David  Edwards,  of  the  fifth  part.  [Recital] 
Whereas  a  marriage  is  intended,  by  the  permission  of  God.  to  be  shortly  had 
and  solemnized  between  the  said  John  Barker  and  Katherine  Edwards:'  Noio 
this  Indenture  witnesscth,  [Consideration],  that  in  consideration  of  the  said 
intended  marriage,  and  the  sum  of  five  thousand  pounds,  of  good  and  lawful 
money  of  Great  Britain,  to  the  said  Abraham  Barker,  (by  and  with  the  consent 
and  agreement  of  the  said  John  Barker  and  Katherine  Edwards,  testified  by 
their  being  parties  to,  and  their  sealing  and  delivery  of,  these  presents),  by  the 
.said  David  Edwards  in  hand  paid,  at  or  before  the  ensealing  and  delivery 
hereof,  being  the  marriage  portion  of  the  said  Katherine  Edwards,  bequeathed 
to  her  by  the  last  will  and  testament  of  the  said  I^wis  Edwards,  her  late 
father,  deceased;  the  receipt  and  payment  whereof  the  said  Abraham  Barker 
doth  hereby  acknowledge,  and  thereof,  and  of  every  part  and  parcel  thereof, 
they  the  said  Abraham  Barker,  John  Barker,  and  Katherine  Edwards,  do.  and 
each  of  them  doth,  release,  acquit,  and  discharge  the  said  David  Edwards,  his 
executors  and  administrators,  for  ever  by  these  presents:  and  for  providing 
a  competent  jointure  and  provision  of  maintenance  for  the  said  Katherine 
Edwards,  in  case  she  shall,  after  the  said  intended  marriage  had,  survive  and 
overlive  the  said  John  Barker,  her  intended  husband :  and  for  settling  and 
assuring  thii  capital  messuage,  lands,  tenements,  and  hereditaments,  herein- 
after mentioned,  unto  such  uses,  and  upon  such  trusts,  as  are  iiereinafter 
expressed  and  declared:  and  for  and  in  consideration  of  the  sum  of  five  shil- 
lings, of  lawful  money  of  Great  Britain,  to  the  said  Abraham  Barker  and 
Cecilia  his  wife,  in  hand  paid  by  the  said  David  Edwards  and  Francis  Golding, 
and  of  ten  shillings  of  like  lawful  money  to  them  also  in  hand  paid  by  the  said 
Charles  Browne  and  Richard  More,  at  or  before  the  ensealing  and  delivery 
hereof,  (the  several  receipts  whereof  are  hereby  respectively  acknowledgd), 
they  the  said  Abraham  Barker  and  Cecilia  his  wife,  [Release]  Have,  and  each 
of  them  hath,  granted,  bargained,  sold,  released,  and  confirmed,  and  by  these 
presents  do,  and  each  of  them  doth,  grant,  bargain,  sell,  release,  and  confirm 
unto  the  said  David  Edwards  and  Francis  Golding,  their  heirs  and  assigns, 
[Parcels]  All  that,  the  capital  messuage  called  Dale  Hall,  in  the  parish  of 
Dale,  in  the  said  county  of  Norfolk,  wherein  the  said  Abraham  Barker  and 
Cecilia  his  wife  now  dwell,  and  all  those  their  lands  in  the  said  parish  of  Dale, 
called  or  known  by  the  name  of  Wilson's  farm,  containing  by  estimation,  five 
hundred  and  forty  acres,  be  the  same  more  or  less,  together  with  all  and 
singular  houses,  dove-houses,  barns,  buildings,  stables,  yards,  gardens,  orchards, 
lands,  tenements,  meadows,  pastures,  feedings,  commons,  woods,  underwoods, 
ways,  waters,  watercourses,  fishings,  privileges,  profits,  easements,  commodities, 
advantages,  emoluments,  hereditaments,  and  appurtenances  whatsoever  to  the 
said  capital  messuage  and  farm  belonging  or  appertaining,  or  with  the  same 
used  or  enjoyed,  or  accepted,  reputed,  taken,  or  known,  as  part,  parcel,  or 
member  thereof,  or  as  belonging  to  the  same  or  any  part  thereof;  (all  which 
said  premises  are  now  in  the  actual  possession  of  the  said  David  Edwards  and 
Francis  Golding,  by  virtue  of  [Mention  of,  bargain  and  sale],  a  bargain  and 
sale  to  them  thereof  made  by  the  said  Abraham  Barker  and  Cecilia  his  wife, 
for  one  whole  year,  in  consideration  of  five  shillings  to  them  paid  by  the  said 
David  Edwards  and  Francis  Golding,  in  and  by  one  indenture,  bearing  date 
the  day  next  before  the  day  of  the  date  hereof,  and  by  force  of  the  statute  for 
transferring  uses  into  possession)  ;  and  the  reversion  and  reversions,  remainder 
and  remainders,  yearly  and  other  rents,  issues  and  profits  thereof,  and  every 
part  and  parcel  thereof,  and  also  all  the  estate,  right,  title,  interest,  trust,  prop- 
erty, claim  and  demand  whatsoever,  both  at  law  and  in  equity,  of  them  the 
said  Abraham  Barker  and  Cecilia  his  wife,  in,  to,  or  out  of  the  said  capital 


806  Appendix  to  Book  II. 

messuage,  lands,  tenements,  hereditaments,  and  premises:  [Habendum]  To 
have  a/nd  to  hold  the  said  capital  messuage,  lands,  tenements,  hereditaments, 
and  all  and  singular  other  the  premises  hereinbefore  mentioned  to  be  hereby- 
granted  and  released,  with  their  and  every  of  their  appurtenances,  unto  the 
said  David  Edwards  and  Francis  Golding,  their  heirs  and  assigns,  to  such  uses, 
upon  such  trusts,  and  to  and  for  such  intents  and  purposes,  as  are  hereinafter 
mentioned,  expressed,  and  declared,  of  and  concerning  the  same:  that  is  to 
say,  to  the  use  and  behoof  of  the  said  Abraham  Barker  and  Cecilia  his  wife, 
[To  the  use  of  the  grantors  till  marriage],  according  to  their  several  and  re- 
spective estates  and  interests  therein,  at  the  time  of,  or  immediately  before, 
the  execution  of  these  presents,  until  the  solemnization  of  the  said  intended 
marriage:  and  from  and  after  the  solemnization  thereof,  to  the  use  and 
behoof  of  the  said  John  Barker,  for  and  during  the  term  of  his  natural  life; 
without  impeachment  of  or  for  any  manner  of  waste:  and  from  and  after  the 
determination  of  that  estate,  [Then  of  the  husband  for  life,  sans  waste:  Re- 
mainder to  trustees  to  preserve  contingent  remainders],  then  to  the  use  of  the 
said  David  Edwards  and  Francis  Golding,  and  their  heirs,  during  the  life  of  the 
said  John  Barker,  upon  trust  to  support  and  preserve  the  contingent  uses  and 
estates  hereinafter  limited  from  being  defeated  and  destroyed,  and  for  that 
purpose  to  make  entries,  or  bring  actions,  as  the  case  shall  require;  but,  never- 
theless, to  permit  and  suffer  the  said  John  Barker,  and  his  assigns,  during  his 
life,  to  receive  and  take  the  rents  and  profits  thereof,  and  of  every  part  thereof, 
to  and  for  his  and  their  own  use  and  benefit  and  from  and  after  the  decease  of 
the  said  John  Barker  [Remainder  to  the  wife  for  life,  for  her  joipture,  in  bar 
of  dower],  then  to  the  use  and  behoof  of  the  said  Katherine  Edwards,  his  in- 
tended wife,  for  and  during  the  term  of  her  natural  life,  for  her  jointure,  and 
in  lieu,  bar.  and  satisfaction  of  her  dower  and  thirds  at  common  law,  which 
she  can  or  may  have  or  claim,  of,  in,  to,  or  out  of,  all  and  every,  or  an}%  of 
the  lands,  tenements,  and  hereditaments,  whereof  or  wherein  the  said  John 
Barker  now  is,  or  at  any  time  or  times  hereafter  during  the  coverture  between 
them  shall  be,  seised  of  any  estate  of  freehold  or  inheritance:  and  from  and 
after  the  decease  of  the  said  Katherine  Edwards,  or  other  sooner  determination 
of  the  said  estate  [Remainder  to  other  trustees  for  a  term,  upon  trusts  after 
mentioned],  then  to  the  use  and  behoof  of  the  said  Charles  Browne  and  Richard 
More,  their  executors,  administrators,  and  assigns,  for  and  during  and  unto  the 
full  end  and  term  of  five  hundred  years  from  thence  next  ensuing,  and  fully 
to  be  complete  and  ended,  without  impeachment  of  waste:  upon  such  trusts 
nevertheless,  and  to  and  for  such  intents  and  purposes,  and  under  and  subject 
to  such  provisoes  and  agreements,  as  are  hereinafter  mentioned,  expressed,  and 
declared  of  and  concerning  the  same:  [Remainder  to  the  first  and  other  sons 
of  the  marriage  in  tail]  and  from  and  after  the  end,  expiration,  or  other  sooner 
determination  of  the  said  term  of  five  hundred  years,  and  subject  thereunto,  to 
the  use  and  behoof  of  the  first  son  of  the  said  John  Barker  on  the  body  of 
the  said  Katherine  Edwards  his  intended,  wife  to  be  begotten,  and  of  the  heirs 
of  the  body  of  such  first  son  lawfully  issuing:  and  for  default  of  such  issue, 
then  to  the  use  and  behoof  of  the  second,  third,  fourth,  fifth,  sixth,  seventh, 
eighth,  ninth,  tenth,  and  of  all  and  every  other  the  son  and  sons  of  the  said 
John  Barker  on  the  body  of  the  said  Katherine  Edwards  his  intended  wife  to 
be  begotten,  severally,  successively,  and  in  remainder  one  after  another,  as 
they  and  every  of  them'  shall  be  in  seniority  of  age,  and  priority  of  birth,  and 
of  the  several  and  respective  heirs  of  the  body  and  bodies  of  all  and  every  such 
son  and  sons  lawfully  issuing;  the  elder  of  such  sons,  and  the  heirs  of  his 
body  issuing,  being  always  to  be  preferred  and  to  take  before  the  yoimger  of 
such  sons,  and  the  heirs  of  his  or  their  body  or  bodies  issuing:  [Remainder  to 
the  daughters]  and  for  default  of  such  issue,  then  to  the  use  and  behoof  of  all 
and  every  the  daughter  and  daughters  of  the  said  John  Barker  on  the  body  of 
the  said  Katherine  Edwards  his  intended  wife  to  be  begotten,  to  be  equally 
divided  between  them  (if  more  than  one),  share  and  share  alike  [as  tenants 
in  common,  in  tail],  as  tenants  in  common  and  not  as  joint-tenants,  and  of 


Appendix  to  Book  II.  807 

the  several  and  respective  heirs  of  the  body  and  bodies  of  all  and  every  such 
daughter  and  daughters  lawfully  issuing:  [Remainder  to  the  husband  in  tail] 
and  for  default  of  such  issue,  then  to  the  use  and  behoof  of  the  heirs  of  the 
body  of  him  the  said  John  Barker  lawfully  issuing:  [Remainder  to  the  hus- 
band's mother  in  fee]  and  for  default  of  such  heirs,  then  to  tlie  use  and  behoof 
of  tlie  said  Cecilia,  the  wife  of  the  said  Abraham  Barker,  and  of  her  heirs  and 
assigns  for  ever.  [The  trust  of  the  terms  declared]  And  as  to.  for,  and  con- 
cerning the  term  of  five  hundred  years  hereinbefore  limited  to  the  said  Charles 
Browne  and  Richard  More,  their  executors,  administrators,  and  assigns,  as 
aforesaid,  it  is  hereby  declared  and  agreed  by  and  between  all  the  said  parties 
to  these  presents,  that  the  same  is  so  limited  to  them  upon  the  trusts,  and  to 
and  for  the  intents  and  purposes,  and  under  and  subject  to  the  provisoes  and 
agreements,  hereinafter  mentioned,  expressed,  and  declared,  of  and  concerning 
the  same :  [To  raise  portions  for  younger  children]  that  is  to  say,  in  case  there 
shall  be  an  eldest  or  only  son  and  one  or  more  other  child  or  children  of  the 
said  John  Barker  on  the  body  of  the  said  Katherine  his  intended  wife  to  be 
begotten,  then  upon  trust  that  they  the  said  Charles  Browne  and  Richard 
More,  tlieir  executors,  administrators,  and  assigns,  by  sale  or  mortgage  of  the 
said  term  of  five  hundred  years,  or  by  such  other  ways  and  means  as  they 
or  the  survivor  of  them,  or  the  executors  or  administrators  of  such  survivor, 
shall  think  fit,  shall  and  do  raise  and  levy,  or  borrow  and  take  up  at  interest, 
the  sum  of  four  thousand  pounds  of  lawful  money  of  Great  Britain,  for  the 
portion  or  portions  of  such  other  child  or  children  (besides  the  eldest  or  only 
son)  as  aforesaid,  to  be  equally  divided  between  them  (if  more  than  one)  share 
and  share  alike;  the  portion  or  portions  of  such  of  them  as  shall  be  a  son  or 
sons  [payable  at  certain  times]  to  be  paid  at  his  or  their  respective  age  or 
ages  of  twenty-one  years;  and  the  portion  or  portions  of  such  of  them  as  shall 
be  a  daughter  or  daughters  to  be  paid  at  her  or  their  respective  age  or  ages  of 
twenty-one  years,  or  day  or  days  of  marriage,  which  shall  first  happen.  And 
upon  this  further  trust,  that  in  the  mean  time  and  until  the  same  portions 
shall  become  payable  as  aforesaid,  the  said  Charles  Browne  and  Richard  Mo.re, 
their  executors,  administrators,  and  assigns,  shall  and  do,  by  and  out  of  the 
rents,  issues,  and  profits  of  the  premises  aforesaid  [with  maintenance  at  the 
rate  of  4  per  cent.],  raise  and  levy  such  competent  yearly  sum  and  sums  of 
money  for  the  maintenance  and  education  of  such  child  or  children,  as  shall 
not  exceed  in  the  whole  the  interest  of  their  respctive  portions  after  the  rate 
of  four  pounds  in  the  hundred  yearly.  Provided  always,  that  in  case  any  of 
the  same  children  shall  happen  to  die  before  his.  her,  or  their  portions  shall 
become  payable  as  aforesaid  [and  benefit  of  survivorship],  then  the  portion  or 
por'iions  of  such  of  them  so  dying  shall  go  and  be  paid  unto  and  be  equally 
divided  among  the  survivor  or  survivors  of  them,  when  and  at  such  time  as 
the  original  portion  or  portions  of  such  surviving  child  or  children  shall  become 
payable  as  aforesaid.  Provided  also,  that,  in  case  there  shall  be  no  such  child 
or  children  of  [if  no  such  child]  the  said  John  Barker  on  the  body  of  the  said 
Katherine  his  intended  wife  begotten,  besides  an  eldest  or  only  son;  or  [or  if 
all  die]  in  case  all  and  every  such  child  or  children  shall  happen  to  die  before 
all  or  any  of  their  said  portions  shall  become  due  and  payable  as  aforesaid;  or 
[or  if  the  portions  be  raised]  in  case  tlie  said  portions,  and  also  such  main- 
tenance as  aforesaid,  shall  by  the  said  Charles  Browne  and  Richard  More, 
their  executors,  administrators,  or  assigns,  be  raised  and  levied  by  any  of  the 
ways  and  means  in  that  behalf  afore-mentioned;  [or  paid]  or  in  case  the  same 
by  sucli  person  or  persons  as  shall  for  the  time  being  be  next  in  reversion  or 
remainder  of  the  same  promises  expectant  upon  the  said  term  of  five  hundred 
years,  shall  be  paid,  [or  secured  by  the  person  next  in  remainder;  the  residue 
of  the  term  to  cease]  or  well  and  duly  secured  to  be  paid,  according  to  the 
true  intent  and  meaning  of  these  presents;  then  and  in  any  of  the  said  cases, 
and  at  all  times  thenceforth,  the  said  term  of  five  hundred  years,  or  so  much 
thereof  as  shall  remain  unsold  or  undisputed  of  for  the  purposes  aforesaid, 
shall  case,  determine,  and  be  utterly  void  to  all  intents  and  purposes,  any 


808  Appendix  to  Book  II. 

thinf;  herein  eontained  to  tlie  contrary  thereof  in  any  wise  notwithstanding. 
[Condition,  that  the  uses  and  estates  hereby  granted  shall  be  void,  on  settling 
other  lands  of  equal  value  in  recompense]  Provided  also,  and  it  is  hereby 
further  declared  and  agreed  by  and  between  all  the  said  parties  to  these 
jtresents,  that  in  case  the  said  Abraham  Barker  or  Cecilia  liis  wife,  at  any  time 
(luring  their  lives,  or  the  life  of  the  survivor  of  them,  with  the  approbation 
of  the  said  David  Edwards  and  Francis  Golding,  or  the  survivor  of  them,  or 
the  executors  and  administrators  of  such  survivor,  shall  settle,  convey,  and 
assure  other  lands  and  tenements  of  an  estate  of  inheritance  in  fee-simple,  in 
possession,  in  some  convenient  place  or  places  within  the  realm  of  England, 
Jof  equal  or  better  value  than  the  said  capital  messuage,  lands,  tenements, 
hereditaments,  and  premises,  hereby  granted  and  released,  and  in  lieu  and 
recompense  thereof,  unto  and  for  such  and  the  like  uses,  intents  and  purposes, 
and  upon  such  and  the  like  trusts,  as  the  said  capital  messuafe,  lands,  tene- 
ments, hereditaments,  and  premises  are  hereby  settled  and  assured  unto  and 
upon,  then  and  in  such  case,  and  at  all  times  from  thenceforth,  all  and  every 
the  use  and  uses,  trust  and  trusts,  estate  and  estates  hereinbefore  limited^ 
expressed,  and  declared  of  or  concerning  the  same,  shall  cease,  determine,  and 
be  utterly  void  to  all  intents  and  purposes;  and  the  same  capital  messuage, 
lands,  tenements,  hereditaments,  and  premises,  shall  from  thenceforth  remain 
and  be  to  and  for  the  only  proper  use  and  behoof  of  the  said  Abraham  Barker 
or  Cecilia  his  wife,  or  the  survivor  of  them,  so  settling,  conveying,  and  assuring^ 
such  other  lands  and  tenements  as  aforesaid,  and  of  his  or  her  heirs  and 
assigns  for  ever;  and  to  and  for  no  other  use,  intent,  or  purpose  whatsoever; 
any  thing  herein  contained  to  the  contrary  thereof  in  any  wise  notwithstand- 
ing. [Covenant  to  levy  a  fine]  And,  for  the  considerations  aforesaid,  and  for 
barring  all  estate-tail,  and  all  remainders  or  reversions  thereupon  expectant  or 
depending,  if  any  be  now  subsisting  and  unbarred  or  otherwise  undetermined, 
of  and  in  the  said  capital  messuage,  lands,  tenements,  hereditaments,  and 
premises,  hereby  granted  and  released,  or  mentioned  to  be  hereby  granted  and 
released,  or  any  of  them,  or  any  part  thereof,  the  said  Abraham  Barker  for 
himself  and  the  said  Cecilia  his  wife,  his  and  her  heirs,  executors,  and  adminis- 
trators, and  the  said  John  Barker  for  himself,  his  heirs,  executors,  and  ad- 
ministrators, do,  and  each  of  them  doth,  respectively  covenant,  promise,  and 
grant,  to  and  with  the  said  David  Edwards  and  Francis  Golding,  their  heirs, 
executors,  and  administrators,  by  these  presents,  that  they  the  said  Abraham 
Barker  and  Cecilia  his  wife,  and  John  Barker,  shall  and  will,  at  the  costs  and 
charfes  of  the  said  Abraham  Barker,  before  the  end  of  Michaelmas  term  next 
ensuing  the  date  hereof,  acknowledge  and  levy,  before  his  majesty's  justices 
of  the  court  of  Common  Pleas  at  Westminster,  one  or  more  fine  or  fines,  sur 
cognizance  de  droit,  come  ceo,  dc,  with  proclamations  according  to  the  form  of 
the  statutes  in  that  case  made  and  provided,  and  the  usual  course  of  fines  in 
such  cases  accustomed,  unto  the  said  David  Edwards,  and  his  heirs,  of  the  said 
capital  messuage,  lands,  tenements,  hereditaments,  and  premises,  by  such  apt 
and  convenient  names,  quantities,  qualities,  number  of  acres  and  other  de- 
scriptions to  ascertain  the  same,  as  shall  be  thought  meet;  which  said  fine 
or  fines  so  as  aforesaid,  or  in  any  other  manner,  levied  and  acknowledged, 
or  to  be  levied  and  acknowledged,  shall  be  and  enxire,  and  shall  be  adjudged, 
deemed,  construed,  and  taken,  and  so  are  and  were  meant  and  intended,  to  be 
and  enure,  and  are  hereby  declared  by  all  the  said  parties  to  these  presents  to  be 
and  enure,  to  the  use  and  behoof  of  the  said  David  Edwards,  and  his  heirs  and 
assigns:  [in  order  to  make  a  tenant  to  the  praecipe,  that  a  recovery  may  be 
suffered]  to  the  intent  and  purpose  that  the  said  David  Edwards  may.  by 
virtue  of  the  said  fine  or  fines  so  covenanted  and  agreed  to  be  levied  as  afore- 
said, be  and  become  perfect  tenant  of  the  freehold  of  the  said  capital  messuage, 
lands,  tenements,  hereditaments,  and  all  other  the  premises,  to  the  end  that 
one  or  more  good  and  perfect  common  recovery  or  recoveries  may  be  thereof 
had  and  sufl"ered.  in  such  manner  as  is  hereinafter  for  that  purpose  mentioned. 
And  it  is  hereby  declared  and  agreed  by  and  between  all  the  said  parties  to 


Appendix  to  Book  II.  809 

these  presents,  that  it  shall  and*  may  be  lawful  to  and  for  the  said  Francis 
Golding,  at  the  costs  and  charges  of  the  said  Abraham  Barker,  before  the  end 
of  Michaelmas  term  next  ensuing  the  date  hereof,  to  sue  forth  and  prosecute 
out  of  his  majesty's  high  court  of  Chancery,  one  or  more  writ  or  writs  of  entry 
sur  disseisin  en  le  post,  returnable  before  his  majesty's  Justices  of  the  court 
of  Common  Pleas  at  Westminster,  thereby  demanding  by  apt  and  convenient 
names,  quantities,  qualities,  number  of  acres,  and  other  descriptions,  the  said 
capital  messuage,  lands,  tenements,  hereditaments,  and  premises,  against  the 
said  David  Edwards;  to  which  said  writ,  or  writs,  of  entry  he  the  said  David 
Edwards  shall  appear  gratis,  either  in  his  own  proper  person,  or  by  hia 
attorney  thereto  lawfully  authorized,  and  vouch  over  to  warranty  the'  said 
Abraham  Barker  and  Cecilia  his  wife,  and  John  Barker;  who  shall  also  gratis 
appear  in  their  proper  persons,  or  by  their  attorney  or  attornies,  thereto  law- 
fully authorized,  and  enter  into  the  warranty,  and  vouch  over  to  warranty 
the  common  vouchee  of  the  same  court;  who  shall  also  appear,  and  after  im- 
parlance shall  make  default:  so  as  judgment  shall  and  may  be  thereupon  had 
and  given  for  the  said  Francis  Golding,  to  recover  the  said  capital  messuage, 
lands,  tenements,  hereditaments,  and  premises,  against  the  said  David  Ed- 
wards, and  for  him  to  recover  in  value  against  the  said  Abraham  Barker  and 
Cecilia  his  wife,  and  John  Barker,  and  for  them  to  recover  in  value  against  the 
said  common  vouchee,  and  that  execution  shall  and  may  be  thereupon  awarded 
and  had  accordingly,  and  all  and  every  other  act  and  thing  be  done  and 
executed,  needful  and  requisite  for  the  suffering  and  perfecting  of  such  common 
recovery  or  recoveries,  with  vouchers  as  aforesaid,  [to  enure]  And  it  is  hereby 
further  declared  and  agreed  by  and  between  all  the  said  parties  to  these 
presents,  that  immediately  from  and  after  the  suffering  and  perfecting  of  the 
said  recovery  or  recoveries,  so  as  aforesaid,  or  in  any  other  manner,  or  at  any 
other  time  or  times,  suffered  or  to  be  suffered,  as  well  these  presents  and  the 
•assurance  hereby  made,  and  the  said  fine  or  fines  so  covenanted  to  be  levied 
as  aforesaid,  as  also  the  said  recovery  or  recoveries,  and  also  all  and  every 
other  fine  or  fines,  recovery  and  recoveries,  conveyances,  and  assurances  in  the 
law  whatsoever  heretofore  had,  made,  levied,  suffered,  or  executed,  or  here- 
after to  be  had,  made,  levied,  suffered,  or  executed,  of  the  said  capital  messuage, 
lands,  tenements,  hereditaments,  and  premises,  or  any  of  them,  or  any  part 
thereof,  by  and  between  the  said  parties  to  these  presents,  or  any  of  them,  or 
wliereunto  they  or  any  of  them  are  or  shall  be  parties  or  privies,  shall  be 
and  enure,  and  shall  be  adjudged,  deemed,  construed,  and  taken,  and  so  are 
and  were  meant  and  intended,  to  be  and  enure,  and  the  recoveror  or  recoverora 
in  the  said  recovery  or  recoveries  named  or  to  be  named,  and  his  or  their  heirs, 
shall  stand  and  be  seised  of  the  said  capital  messuage,  lands,  tenements,  here- 
<iitaments,  and  premises,  and  of  every  part  and  parcel  thereof,  [to  the  preced- 
ing uses  in  this  deed],  to  the  uses,  upon  the  trusts,  and  to  and  for  the  intents 
and  purposes,  and  under  and  subject  to  the  provisoes,  limitations,  and  agree- 
ments, hereinbefore  mentioned,  expressed,  and  declared,  of  and  concerning  the 
same.  [Other  covenants;  for  quiet  enjoyment]  And  the  said  Abraham  Barker, 
party  hereunto,  doth  hereby,  for  himself,  his  heirs,  executors,  and  adminis- 
t"ators,  further  covenant,  promise,  grant  and  agree  to  and  with  the  said  David 
Edwards  and  Francis  Golding,  their  heirs,  executors,  and  administrators,  in 
manner  and  form  following;  that  is  to  say,  that  the  said  capital  messuage, 
lands,  tenements,  hereditaments,  and  premises,  shall  and  may  at  all  times 
hereafter  remain,  continue,  and  be,  to  and  for  the  uses  and  purposes,  upon  the 
trusts,  and  under  and  subject  to  the  provisoes,  limitations,  and  agreements, 
liereinbefore  mentioned,  expressed,  and  declared,  of  and  concerning  the  same ; 
and  si)all  and  may  be  peaceably  and  quietly  had,  held,  and  enjoyed  accordingly, 
without  any  lawful  let  or  interruption  of  or  by  the  said  Abraham  Barker  or 
C«cilia  his  wife,  parties  hereunto,  his  or  her  heirs  or  assigns,  or  of  or  by  any 
other  person  or  persons  lawfully  claiming  or  to  claim  from.  by.  or  under,  or 
in  trust  for,  him,  her,  them,  or  any  of  them:  or  from,  by.  or  under  his  or  her 
ancestors,  or  any  of  them;  [free  from  incumbrances]  and  shall  so  remain,  con- 


810  Appendix  to  Book  II. 

tinue,  and  be,  free  and  clear,  and  freely  and  clearly  acquitted,  exonerated,  and 
discharged,  or  otherwise  by  the  said  Abraham  Barker  or  Cecilia  his  wife, 
parties  hereunto,  his  or  her  heirs,  executors,  or  administrators,  well  and  suffi- 
ciently saved,  defended,  kept  harmless,  and  indemnified,  of,  from,  and  against 
ail  former  and  other  gifts,  grants,  bargains,  sales,  leases,  mortgages,  estates, 
titles,  troubles,  charges,  and  incumbrances  whatsoever,  had,  made,  done,  com- 
mitted, occasioned,  or  suffered,  or  to  be  had,  made,  done,  committed,  occasioned, 
or  suffered,  by  the  said  Abraham  Barker  or  Cecilia  his  wife,  or  by  his  or  her 
ancestors,  or  any  of  them,  or  by  his,  her,  their,  or  any  of  their,  act,  means, 
assent,  consent,  or  procurement:  [and  for  further  assurance]  And  moreover 
that  he  the  said  Abraham  Barker  and  Cecilia  his  wife,  parties  hereunto,  and 
his  or  her  heirs,  and  all  other  persons  having  or  lawfully  claiming,  or  which 
shall  or  may  have  or  lawfully  claim,  any  estate,  right,  title,  trust,  or  interest, 
at  law  or  in  equity,  of,  in,  to,  or  out  of,  the  said  capital  messuage,  lands, 
tenements,  hereditaments,  and  premises,  or  any  of  them,  or  any  part  thereof, 
by  or  under  or  in  trust"  for  him,  her,  them,  or  any  of  them,  or  by  or  under  his 
or  her  ancestors  or  any  of  them,  shall  and  will,  from  time  to  time,  and  at  all 
times  hereafter,  upon  every  reasonable  request,  and  at  the  costs  and  charges 
of  the  said  David  Edwards  and  Francis  Golding,  or  either  of  them,  their  or 
either  of  their  heirs,  executors,  or  administrators,  make,  do,  and  execute,  or 
cause  to  be  made,  done,  and  executed,  all  such  further  and  other  lawful  and 
reasonable  acts,  deeds,  conveyances,  and  assurances  in  the  law  whatsoever,  for 
the  further,  better,  more  perfect,  and  absolute  granting,  conveying,  settling, 
and  assuring  of  the  same  capital  messuage,  lands,  tenements,  hereditaments, 
and  premises,  to  and  for  the  uses  and  purposes,  upon  the  trusts,  and  under  and 
subject  to  the  provisoes,  limitations,  and  agreements  hereinbefore  mentioned, 
expressed,  and  declared,  of  and  concerning  the  same,  as  by  the  said  David 
Edwards  and  Francis  Golding,  or  either  of  them,  their  or  either  of  their  heirs, 
executors,  or  administrators,  or  their  or  any  of  their  counsel  learned  in  the 
law,  shall  be  reasonably  advised,  devised,  or  required:  so  as  such  further 
assurances  contain  in  them  no  further  or  other  warranty  or  covenants  than 
against  the  person  or  persons,  his,  her,  or  their  heirs,  who  shall  make  or  do 
the  same;  and  so  as  the  party  or  parties  who  shall  be  requested  to  make  such 
further  assurances,  be  not  compelled  or  compellable,  for  making  or  doing 
thereof,  to  go  and  travel  above  five  miles  from  his,  her,  or  their  then  respective 
dwellings,  or  places  of  abode.  [Power  of  revocation]  Provided  lastly,  and  it  is 
hereby  further  declared  and  agreed  by  and  between  all  the  parties  to  these 
presents,  that  it  shall  and  may  be  lawful  to  and  for  the  said  Abraham  Barker 
and  Cecilia  his  wife,  John  Barker  and  Katherine  his  intended  wife,  and  David 
Edwards,  at  any  time  or  times  hereafter,  during  their  joint  lives,  by  any 
writing  or  writings  under  their  respective  hands  and  seals,  and  attested  by 
two  or  more  credible  witnesses,  to  revoke,  make  void,  alter  or  change  all  and 
every  or  any  the  use  and  uses,  estate  and  estates,  herein  and  hereby  before 
limited  and  declared,  or  mentioned  or  intended  to  be  limited  and  declared,  of 
and  in,  the  capital  messuage,  lands,  tenements,  hereditaments,  and  premises 
aforesaid,  or  of  and  in  any  part  or  parcel  thereof,  and  to  declare  new  and 
other  uses  of  the  same,  or  of  any  part  or  parcel  thereof,  any  thing  herein  con- 
tained to  the  contrary  thereof  in  any  wise  notwithstanding.  [Conclusion] 
In  toitness  whereof  the  parties  to  these  presents  their  hands  and  seals  have 
subscribed  and  set,  the  day  and  year  first  above  written. 


Sealed  and  delivered,  being 
first  duly  stamped,  in  the 
presence  of 

George  Carter. 

William  Browne. 


Abraham  Barker.  (L.  S.) 

Cecilia  Barker.  (L.  S.) 

David  Edwards.  (L.  S.) 

Francis  Golding.  (L.  S.) 

Charles  Browne.  (L.  S.) 

Richard  More.  (L.  S.) 

John  Barker.  (L.  S.) 

Katherine  Edwards.  (L.  S.) 


Appendix  to  Book  II.  811 

No.  ra. 

AN  OBLIGATION,  OR  BOND,  WITH  CONDITION  FOR  THE  PAYMENT 

OF  MONEY. 

Know  all  men  by  these  presents,  that  I  David  Edwards  of  Lincoln's  Inn, 
in  the  county  of  Middlesex,  esquire,  am  held  and  firmly  bound  to  Abraham 
Barker  of  Dale  Hall  in  the  county  of  Norfolk,  esquire,  in  ten  thousand  pounds 
of  lawful  money  of  Great  Britain,  to  be  paid  to  the  said  Abraham  Barker,  or 
his  certain  attorney,  executors,  administrators,  or  assigns;  for  which  payment 
well  and  truly  to  be  made,  I  bind  myself,  my  heirs,  executors,  and  adminis- 
trators, firmly  by  these  presents,  sealed  with  my  seal.  Dated  the  fourth  day 
of  September  in  the  twenty-first  year  of  the  reign  of  our  sovereign  lord  George 
the  Second,  by  the  grace  of  God  king  of  Great  Britain,  France,  and  Ireland, 
defender  of  the  faith,  and  so  forth,  and  in  the  year  of  our  Lord  one  thousand 
seven  hundred  and  forty-seven. 

The  condition  of  this  obligation  is  such,  that  if  the  above-bounden  David 
Edwards,  his  heirs,  executors,  or  administrators,  do  and  shall  well  and  truly 
pay,  or  cause  to  be  paid,  unto  the  above-named  Abraham  Barker,  his  executors, 
administrators,  or  assigns,  the  full  sum  of  five  tliousand  pounds  of  lawful 
British  money,  with  lawful  interest  for  the  same,  on  the  fourth  day  of  March 
next  ensuing  the  date  of  the  above-written  obligation,  then  this  obligation 
shall  be  void  and  of  none  effect,  or  else  shall  be  and  remain  in  full  force  and 
virtue. 

Sealed  and  delivered,  being  "^ 

first  duly  stamped,  in  the  I       j^^^j^  Edwards.  (L.  S.) 

presence  of  | 

George  Carter.  J 

William  Browne. 


No.  IV. 
A  FINE  OF  LANDS  SUR  COGNIZANCE  DE  DROIT,  COME  CEO,  &c. 

Sect.  1.    Wkit  of  Covenant;  ob  Praecipe. 

George  the  Second,  by  the  grace  of  God,  of  Great  Britain,  France,  and 
Ireland  king,  defender  of  the  faith,  and  so  forth,  to  the  sheriff  of  Norfolk, 
greeting.  Command  Abraham  Barker,  esquire,  and  Cecilia  his  wife,  and  John 
Barker,  esquire,  that  justly  and  without  delay  they  perform  to  David  Edwards, 
esquire,  the  covenant  made  between  them  of  two  messuages,  two  gardens, 
three  hundred  acres  of  land,  one  hundred  acres  of  meadow,  two  hundred  acres 
of  pasture,  and  fifty  acres  of  wood,  with  the  appurtenances,  in  Dale;  and 
unless  they  shall  so  do,  and  if  the  said  David  shall  give  you  security  of  prose- 
cuting his  claim,  then  summon  by  good  summoners  the  said  Abraham,  Cecilia, 
and  John  that  they  appear  before  our  justices  at  Westminster,  from  the  day  of 
St.  INIichael  in  one  month,  to  shew  wherefore  they  have  not  done  it:  and  have 
you  there  the  summoners,  and  this  writ.  Witness  ourself  at  Westminster  the 
ninth  day  of,  October,  in  the  twenty-first  year  of  our  reign. 

[Sheriff's    return]    Sum-  "^ 
Pledges  of      )  John  Doe.  moners  of  the  within-   I  John  Den. 

prosecution.    \  Richard  Roe.  named    Abraham,    Ce-   C  Richard  Fen. 

cilia,  and  John.  J 


812  Appendix  to  Book  II. 

Sect.  2.    The  Licexce  to  Agree. 

Norfolk,      )       David   Edwards,   esquire,   gives  to  the  lord   the  king  ten 

to  wit.       \      marks,  for  license  to  agree  with  Abraham  Barker,  esquire,  of 

a  plea  of  covenant  of  two  messuages,  two  gardens,  three  hundred  acres  of 

land,  one  hundred  acres  of  meadow,  two  hundred  acres  of  pasture,  and  fifty 

acres  of  wood,  with  the  appurtenances,  in  Dale. 

Sect.  3.    The  Concord. 

And  the  agreement  is  such,  to  wit,  that  the  aforesaid  Abraham,  Cecilia, 
and  John  have  acknowledged  the  aforesaid  tenements,  with  the  appurtenances, 
to  be  the  right  of  him  the  said  David,  as  those  which  the  said  David  hath  of 
the  gift  of  the  aforesaid  Abraliam,  Cecilia,  and  John;  and  those  they  have 
remised  and  quitted  claim,  from  them  and  their  heirs,  to  the  aforesaid  David, 
and  his  heirs,  for  ever.  And  further,  the  same  Abraham,  Cecilia,  and  John 
have  granted,  for  themselves  and  their  heirs,  that  they  will  warrant  to  the 
aforesaid  David,  and  his  heirs,  the  aforesaid  tenements,  with  the  appurten- 
ances, against  all  men,  for  ever.  And  for  this  recognition,  remise,  quit-claim, 
warranty,  fine,  and  agreement,  the  said  David  hath  given  to  the  said  Abraham, 
Cecilia,  and  John,  two  hundred  pounds  sterling. 

Sect.  4.    The  Note  or  Abstract. 

Norfolk,  )  Between  David  Edwards,  esquire,  complainant,  and  Abra- 
to  wit.  f  ham  Barker,  esquire,  and  Cecilia  his  wife,  and  John  Barker, 
esquire,  deforciants,  of  two  messuages,  two  gardens,  three  hundred  acres  of 
land,  one  hundred  acres  of  meadow,  two  hundred  acres  of  pasture,  and  fifty 
acres  of  wood,  with  the  appurtenances,  in  Dale,  whereupon  a  plea  of  covenant 
was  summoned  between  them:  to  wit,  that  the  said  Abraham,  Cecilia,  and 
John,  have  acknowledged  the  aforesaid  tenements,  with  the  appurtenances,  to 
be  the  right  of  him  the  said  David,  as  those  which  the  said  David  hath  of  the 
gift  of  the  aforesaid  Abraham,  Cecilia,  and  John;  and  those  they  have  remised 
and  quitted  claim,  from  them  and  their  heirs,  to  the  aforesaid  David  and  his 
heirs  for  ever.  And  further,  the  same  Abraham.  Cecilia,  and  John,  have 
granted  for  themselves,  and  their  heirs,  that  they  will  warrant  to  the  afore- 
said David,  and  his  heirs,  the  aforesaid  tenements,  with  the  appurtenances, 
against  all  men,  for  ever.  And  for  this  recognition,  remise,  quit-claim,  war- 
ranty, fine,  and  agreement,  the  said  David  hath  given  to  tlie  said  Abraham, 
Cecilia,  and  John,  two  hundred  pounds  sterling. 

•Sect.  5.    The  Foot,  Chirograph,  or  Indentures  of  the  Fine. 

Norfolk,  I  This  is  the  final  agreement,  made  in  the  court  of  the 
to  wit.  )  lord  the  king  at  Westminster,  from  the  day  of  Saint  Micliael 
in  one  month,  in  the  twenty-first  year  of  the.  reign  of  the  lord  C4eorge  the 
Second,  by  the  grace  of  God,  of  Great  Britain,  France,  and  Ireland  king,  de- 
fender of  the  faith,  and  so  forth,  before  John  Willes,  Thomas  Abney,  Thomas 
Burnet,  and  Thomas  Birch,  justices,  and  other  faithful  subjects  of  the  lord  the 
king  then  there  present,  between  David  Edwards,  esquire,  complainant,  and 
Abraham  Barker,  esquire,  and  Cecilia  his  wife,  and  John  Barker,  esquire, 
deforciants,  of  two  messuages,  two  gardens,  three  hundred  acres  erf  land,  one 
hundred  acres  of  meadow,  two  hundred  acres  of  pasture,  and  fifty  acres  of 
wood,  with  the  appurtenances,  in  Dale,  whereupon  a  plea  of  covenant  was 
summoned  between  them  in  the  said  court;  to  wit.  that  the  aforesaid  Abraham, 
Cecilia,  and  John,  have  acknowliedged  the  aforesaid  tenements,  with  the  ap- 
purtenances, to  be  the  right  of  him  the  said  David,  as  tiiose  which  the  said 
David  hath  of  the  gift  of  the  aforesaid  Abraham,  Cecilia,  and  John;  and  those 


Appendix  to  Book  II.  813 

they  have  remised  and  quitted  claim,  from  them  and  their  heirs,  to  the  afore- 
said David,  and  his  heirs,  for  ever.  And  further,  the  same  Abraham,  Cecilia, 
Jind  John,  have  granted  for  themselves  and  their  heirs,  that  they  will  warrant 
to  the  aforesaid  David  and  his  heirs,  the  aforesaid  tenements,  with  the  ap- 
purtenances, against  all  men,  for  ever.  And  for  this  recognition,  remise,  quit- 
claim, warranty,  fine,  and  agreement,  the  said  David  hath  given  to  the  said 
Abraham,  Cecilia,  and  John,  two  hundred  pounds  sterling. 

Sect.    6.     Pboclamations,   endorsed   upon   the   Fine,    accobding    to   the 

Statutes. 

The  first  proclamation  was  made  the  sixteenth  day  of  November,  in  the 
term  of  Saint  Michael,  in  the  twenty-first  year  of  the  king  within-written. 

The  second  proclamation  was  made  the  fourth  day  of  February,  in  the  term 
of  Saint  Hilary,  in  the  twenty-first  year  of  the  king  within-written. 

The  third  proclamation  was  made  the  thirteenth  day  of  May,  in  the  term 
of  Easter,  in  the  twenty-first  year  of  the  king  within-written. 

The  fom-th  proclamation  was  made  the  twenty-eighth  day  of  June,  in  the 
term  of  the  holy  Trinity,  in  the  twenty-second  year  of  the  king  within-written. 

No.  V. 

A  COMMON  RECOVERY  OF  LANDS  WITH*  DOUBLE  VOUCHER. 

Sect.  L    Writ  of  Entry  sub  Disseisin  in  the  Post;  ob  Pbaecipe. 

Geobge  the  Second,  by  the  grace  of  God.  of  Great  Britain,  France,  and 
Ireland  king,  defender  of  the  faith,  and  so  forth,  to  the  sheriff  of  Norfolk, 
greeting.  Command  David  Edwards,  esquire,  that,  justly  and  without  delay, 
he  render  to  Francis  Golding,  clerk,  two  messuages,  two  gardens,  three  hundred 
acres  of  land,  one  hundred  acres  of  meadow,  two  hundred  acres  of  pasture,  and 
fifty  acres  of  wood,  with  the  appurtenances,  in  Dale,  which  he  claims  to  be  his 
right  and  inheritance,  and  into  which  the  said  David  hath  not  entry,  unless 
after  the  disseisin,  which  Hugh  Hunt  thereof  unjustly,  and  without  judgment, 
hath  made  to  the  aforesaid  Francis,  within  thirty  years  now  last  past,  as  he 
saith,  and  whereupon  he  complains  that  the  aforesaid  David  deforceth  him. 
And  unless  he  shall  so  do,  and  if  the  said  Francis  shall  give  you  security  of 
prosecuting  his  claim,  then  summon  by  good  summoners  the  said  David,  that 
he  appear  before  our  justices  at  Westminster  on  the  octave  of  Saint  Martin, 
to  shew  wherefore  he  hath  not  done  it:  and  have  you  there  the  summoners, 
and  this  writ.  Witness  ourself  at  W^estminster,  the  twenty-ninth  day  of 
October,  in  the  twenty-first  year  of  our  reign. 

Pledges  of     )  John  Doe.  t^henff^s    «turn]^  Sum-  ^  j^,„  j,^„ 

prosecution,    j  Richard  Roe.  named  David.  (  Richard  Fen. 

Sect.  2.    Exemplification  of  the  Recovery  Roix. 

Geobge  the  Second,  by  the  grace  of  God,  of  Great  Britain,  France,  and 
Ireland  king,  defender  of  the  faith,  and  so  forth,  to  all  to  whom  these  our 
present  letters  shall  come,  greeting.  Know  ye,  that  among  the  pleas  of  land 
enrolled  at  Westminster,  before  Sir  John  Willes,  knight,  and  his  fellows,  our 
justices  of  the  bench,  of  the  term  of  Saint  Michael,  in  the  twenty-first  year 
of  our  reign,  upon  the  fifty-second  roll  it  is  thus  contained:   [Return.    Demand 

*Note,  that,  if  the  recovery  be  had 
with  single  voucher,  the  parts  marked 
"thus"  in  sect.  2,  are  omitted. 


814        1  Appendix  to  Book  II. 

against  the  tenant]  Entry  returnable  on  the  octave  of  Saint  Martin.  Norfolk, 
to  wit:  Francis  Golding,  clerk,  in  his  proper  person  demandeth  against  David 
Edwards,  esquire,  two  messuages,  two  gradens,  three  hundred  acres  of  land, 
one  hundred  acres  of  meadow,  two  hundred  acres  of  pasture,  and  fifty  acres 
of  wood,  with  the  appurtenances,  in  Dale,  as  his  right  and  inheritance,  and  into 
which  the  said  David  hath  not  entry,  unless  after  the  disseisin  which  Hugh 
Hunt  thereof  unjustly,  and  without  judgment,  hath  made  to  the  aforesaid 
Francis,  within  thirty  years  now  last  past.  [Count]  And  whereupon  he  saith, 
that  he  himself  was  seized  of  the  tenements  aforesaid,  with  the  appurtenances, 
in  his  demesne  as  of  fee  and  right,  in  time  of  peace,  in  the  time  of  the  lord 
the  king  that  now  is,  [Esplees]  by  taking  the  profits  thereof  to  the  value  [*of 
six  shillings  and  eight  pence,  and  more,  in  rents,  corn,  and  grass] :  and  into 
which  [the  said  David  hath  not  entry,  unless  as  aforesaid]  and  thereupon  he 
bringeth  suit  [and  good  proof].  [Defence  of  the  tenant.  Voucher.  Warranty.] 
And  the  said  David  in  his  proper  person  comes  and  defendeth  his  right,  when 
[and  where  it  shall  behove  him],  and  thereupon  voucheth  to  warranty  "John 
"Barker,  esquire;  who  is  present  here  in  court  in  his  proper  person,  and  the 
"  tenements  aforesaid,  with  the  appurtenances  to  him  freely  warranteth  [and 
"  prays  that  the  said  Francis  may  count  against  him,].  [Demand  against  the 
"vouchee]  And  hereupon  the  said  Francis  demandeth  against  the  said  John, 
"  tenant  by  his  own  warranty,  the  tenements  aforesaid,  with  the  appurten- 
"  ances.  in  form  aforesaid,  &c.  [Count]  And  whereupon  he  saith,  that  he 
"  himself  was  seised  of  the  tenements  aforesaid,  with  the  appurtenances,  in 
"  his  demesne  as  of  fee  and  right,  in  time  of  peace,  in  the  time  of  the  lord 
"  the  king  that  now  is,  by  taking  the  profits  thereof  to  the  value,  &c.  And 
"  into  which,  &c.  And  thereupon  he  bringeth  suit.  &c.  [Defence  of  the 
"  vouchee]  And  the  aforesaid  John,  tenant  by  his  own  warranty,  defends  his 
"  rigiit,  when,  &c.,  and  thereupon  he  further  voucheth  to  warranty  "  Jacob 
Moreland ;  who  is  present  here  in  court  in  his  proper  person,  and  the  tenements 
aforesaid,  with  the  appurtenances,  to  him  freely  warranteth,  &c.  [Second 
voucher.  Warranty.  Demand  against  the  common  vouchee.  Count]  And 
hereupon  the  said  Francis  demandeth  against  the  said  Jacob,  tenant  by  his 
own  warranty,  the  tenements  aforesaid,  with  the  appurtenances,  in  form  afore- 
said, &c.  And  whereupon  he  saith,  that  he  himself  was  seized  of  the  tene- 
ments aforesaid,  with  the  appurtenances,  in  his  demesne  as  of  fee  and  right, 
in  t  ine  of  peace,  in  the  time  of  the  lord  the  king  that  now  is,  by  taking  the 
profits  thereof  to  the  value.  &c.  And  into  which,  &c.  And  thereupon  he 
bringeth  suit,  &c.  [Defence  of  the  common  vouchee]  And  the  aforesaid  Jacob, 
tenant  by  his  own  warranty,  defends  his  right,  when,  &c.  [Plea,  nul  disseisin] 
And  saith  that  the  aforesaid  Hugh  did  not  disseise  the  aforesaid  Francis  of 
the  tenements  aforesaid,  as  the  aforesaid  Francis  by  his  writ  and  count  afore- 
said above  doth  suppose:  and  of  this  he  puts  himself  upon  the  country.  [Im- 
parlance. Default  of  the  common  vouchee]  And  the  aforesaid  Francis  there- 
upon craveth  leave  to  imparl ;  and  he  hath  it.  And  afterwards  the  aforesaid 
Francis  cometh  again  here  into  court,  in  this  same  term  in  his  proper  person, 
and  the  aforesaid  Jacob,  though  solemnly  called,  cometh  not  again,  but  hath 
departed  in  contempt  of  the  court,  and  maketh  default.  [Judgment  for  the 
demandant]  Therefore  it  is  considered,  that  the  aforesaid  Francis  do  recover 
his  seisin  against  the  aforesaid  David  of  the  tenements  aforesaid,  with  the 
appurtenances:  and  that  the  said  David  have  of  the  land  of  the  aforesaid 
"John,  to  the  value  [of  the  tenements  aforesaid];  and  further,  that  the  said 
"John  [Recovery  in  value]  liave.  of  the  land  of  the  said"  Jacob  to  the  value 
[of  the  tenements  aforesaid]  [Amercement]  And  the  said  Jacob  in  mercy. 
And  hereupon  the  said  Francis  prays  a  writ  of  the  lord  the  king,  to  be  directed 
to  the  sheriff  of  the  county  aforesaid,  to  cause  him  to  have  full  seisin  of  the 

*The  clauses  between  hooks  are  no 
otherwise  expressed  in  the  record 
than  bv  an  &c. 


Appendix  to  Book  IL  815 

tenements  aforesaid,  with  the  appurtenances:  and  it  is  granted  unto  him, 
returnable  here  without  delay.  [Award  of  the  writ  reisin,  and  return]  After- 
wards, that  is  to  say,  the  twenty-eighth  day  of  November  in  this  same  term, 
here  cometh  the  said  Francis  in  his  proper  person;  and  the  sheriff,  namely.  Sir 
Charles  Thompson,  knight,  now  sendeth,  that  he  by  virtue  of  the  writ  afore- 
said to  him  directed,  on  the  twenty-fourth  day  of  the  same  month,  did  cause 
the  said  Francis  to  have  full  seisin  of  the  tenements  aforesaid  with  the  ap- 
purtenances, as  he  was  commanded.  [Exemplification  continued]  All  and 
singular  which  premises,  at  the  request  of  the  said  Francis,  by  the  tenor  of 
these  presents,  we  have  held  good  to  be  exemplified.  In  testimony  whereof 
we  have  caused  our  seal,  appointed  for  sealing  writs  in  the  Bench  aforesaid, 
to  be  affixed  to  these  presents.  [Teste]  Witness  Sir  John  Willes,  knight,  at 
Westminster,  the  twenty-eighth  day  of  November,  in  the  twenty -first  year  of 
our  reign. 

Cooke. 


APPENDIX  TO  BOOK  III. 


No,  I. 

Proceedings  on  a  Writ  of  Right  Patent. 
Sect.  1.    Writ  of  Right  Patent  in  the  Coubt  Baboit. 

George  the  Second,  by  the  Grace  of  God,  of  Great  Britain,  France,  and 
Ireland  King,  Defender  of  the  Faith,  and  so  forth,  to  Willoughby,  Earl  of 
Abingdon,  greeting.  We  command  you  that  without  delay  you  hold  full  right 
to  William  Kent,  Esquire,  of  one  messuage  and  twenty  acres  of  land,  with  the 
appurtenances,  in  Dorchester,  which  he  claims  to  hold  of  you  by  the  free 
service  of  one  penny  yearly  in  lieu  of  all  services,  of  which  Richard  Allen  de- 
forces him.  And  unless  you  do  so,  let  the  Sheriff  of  Oxfordshire  do  it,  that 
we  no  longer  hear  complaint  thereof  for  defect  of  right.  Witness  ourself  at 
Westminster,  the  twentieth  day  of  August,  in  the  thirtieth  year  of  our  reign. 


Pledges  of  prosecution,  {  Sabd  Roe. 


Sect.  2.    Writ  of  ToLT,  to  remove  it  into  the  Countt  Court. 

Charles  Morton,  Esquire,  Sheriff  of  Oxfordshire,  to  John  Long,  Bailiff 
errant  of  our  Lord  the  King  and  of  myself,  greeting.  Because  by  the  com- 
plaint of  William  Kent,  Esquire,  personally  present  at  my  County  Court,  to 
wit,  on  Monday,  the  sixth  day  of  September  in  the  thirtieth  year  of  the  reign 
of  our  Lord  George  the  Second,  by  the  grace  of  God,  of  Great  Britain,  France, 
and  Ireland  King,  Defender  of  the  Faith,  and  so  forth,  at  Oxford,  in  the  shire- 
house  there  holden,  I  am  informed,  that  although  he  himself  the  writ  of  our 
said  lord  the  King  of  right  patent  directed  to  Willoughby,  Earl  of  Abingdon, 
for  this  that  [*ii]  "he  should  hold  full  right  to  the  said  William  Kent,  of  one 
messuage  and  twenty  acres  of  land,  with  the  appurtenances,  in  Dorchester, 
within  my  said  county,  of  which  Richard  Allen  deforces  him,  hath  brought  to 
the  said  Willoughby,  Earl  of  Abingdon;  yet  for  that  the  said  Willoughby, 
Earl  of  Abingdon,  favoureth  the  said  Richard  Allen  in  this  part,  and  hath 
hitherto  delayed  to  do  full  right  according  to  the  exigence  of  the  said  writ, 
I  command  you  on  the  part  of  our  said  Lord  the  King,  firmly  enjoining,  that 
in  your  proper  person  you  go  to  the  Court  Baron  of  the  said  Willoughby,  Earl 
of  Abingdon,  at  Dorchester  aforesaid,  and  take  away  the  plaint,  which  there 
is  between  the  said  William  Kent  and  Richard  Allen  by  the  said  writ,  into  my 
County  Court  to  be  next  holden';  and  summon  by  good  summoners  the  said 
Richard  Allen,  that  he  be  at  my  County  Court,  on  Monday,  the  fourth  day  of 
October  next  coming,  at  Oxford,  in  the  shirehouse  there  to  be  holden,  to  answer 
to  the  said  William  Kent  thereof.  And  have  you  there  then  the  said  plaint, 
the  summoners,  and  this  precept.  Given  in  my  County  Court,  at  Oxford,  io 
the  shirehouse,  the  sixth  day  of  September,  in  the  year  aforesaid. 

Sect.  3.    Writ  of  Pone,  to  remove  it  into  the  Court  of  Common  Pleas. 

George  the  Second,  by  the  Grace  of  God,  of  Great  Britain,  France,  and 
Ireland  King,  Defender  of  the  Faith,  and  so  forth,  to  the  Sheriff  of  Oxfordshire, 

[816] 


Appendix  to  Book  III.  817 

greeting.  PrT  at  the  request  of  William  Kent,  before  our  justices  at  West- 
minster, on  the  Morrow  of  All  Souls,  the  plaint  which  is  in  your  County  Ck)urt 
by  our  writ  of  right,  between  the  said  William  Kent,  demandant,  and  Richard 
Allen,  tenant,  of  one  messuage  and  twenty  acres  of  land,  with  the  appurten- 
ances, in  Dorchester;  and  summon  by  good  summoners  the  said  Richard  Allen, 
that  he  be  then  there,  to  answer  to  the  said  William  Kent  thereof.  And 
have  you  there  the  summoners  and  this  writ.  Witness  ourself  at  West- 
minster, the  tenth  day  of  September,  in  the  thirtieth  year  of  our  reign. 

Sect.  4.    Writ  of  Right,  quia  Dominus  remist  Curiam. 

George  the  Second,  by  the  Grace  of  God,  of  Great  Britain,  France,  and 
Ireland  King,  Defender  of  the  Faith,  and  so  forth,  to  the  Sheriff  of  Oxford- 
shire, greeting.  Command  Richard  Allen,  that  he  justly  and  without  delay 
render  unto  William  Kent  one  messuage  and  twenty  acres  of  land,  with  the 
appurtenances,  in  Dorchester,  which  he  claims  to  be  his  right  and  inheritance, 
and  whereupon  he  complains  that  the  aforesaid  Richard,  unjustly  deforces  him. 
And  unless  he  shall  so  do,  and  [*iii]  *if  the  said  William  shall  give  you  security 
of  prosecuting  his  claim,  then  summon  by  good  summoners  the  said  Richard, 
that  he  appear  before  our  justices  at  Westminster,  on  the  Morrow  of  All 
Souls,  to  show  wherefore  he  hath  not  done  it.  And  have  you  there  the  sum- 
moners and  this  writ.  Witness  ourself  at  Westminster,  the  twentieth  day  of 
August,  in  the  thirtieth  year  of  our  reign.  Because  Willoughby,  Earl  of 
Abingdon,  the  chief  lord  of  that  fee,  hath  thereupon  remised  unto  us  his  court. 
Pledges  of        (JOHXDOE,  [Sheriff's    reture]    Sum-(j         j, 

Sect.  5.     The  Record,  with  the  award  of  Battel.f 

Pleas  at  Westminster  before  Sir  John  Willes,  Knight,  and  his  brethern, 
Justices  of  the  Bench  of  the  Lord  the  King  at  Westminster,  of  the  term 
of  Saint  Michael,  in  the  thirtieth  year  of  the  reign  of  the  Lord  George 
the  Second,  by  the  grace  of  God,  of  Great  Britain,  France,  and  Ireland 
King,  Defender  of  the  Faith,  &c. 

[Writ]  Oxon,  j  William  Kent,  Esquire,  by  James  Parker,  his  attorney, 
to  vnt.  l  demands  against  Richard  Allen,  Gentleman,  one  messuage 
and  twenty  acres  of  land,  with  the  appurtenances,  in  Dorciiester,  as  las  ng.-t 
and  inheritance,  by  writ  of  the  Lord  the  King  of  right,  [Dominus  remisit 
curiam]  bbxjause  Willoughby,  Earl  of  Abingdon,  the  chief  lord  of  that  fee, 
hath  now  thereupon  remised  to  the  Lord  the  King  his  court.  [Count]  And 
whereupon  he  saith,  that  he  himself  was  seised  of  the  tenements  aforesaid, 
with  the  appurtenances,  in  his  demesne  as  of  fee  and  right,  in  the  time  of 
peace,  in  the  time  of  the  Lord  George  the  First,  late  King  of  Great  Britain, 
[Esplees]  by  taking  the  esplees  thereof  to  the  value+  [of  ten  shillings,  and 
more,  in  rents,  corn,  and  grass.]  And  that  such  is  his  right  he  offers  [suit 
and  good  proof.]  [Defence]  And  the  said  Richard  Allen,  by  Peter  Jones,  his 
attorney,  comes  and  defends  the  right  of  the  said  William  Kent,  and  his 
seisin,  when  [and  where  it  shall  behove  him.]  and  all  [that  concerns  it,]  and 
whatsoever  [he  ought  to  defend]  and  chiefly  the  tenements  aforesaid,  with  the 
appurtenances,  as  of  fee  and  right,  [namely,  one  messuage  and  twenty  acres 
of  land,  with  appurtenances  in  Dorchester.]  [Wager  of  battle]  And  this  he 
is  ready  to  defend  by  the  body  of  his  freeman,  George  Rumbold  by  name,  who 

t  As  to  battle,  see  page  337,  n.  7.  the  Appepdix.  are  usually  no  other- 

Z  N.  B.    The  clauses  between  hooks,  wise   expressed   in   the   Records   than 

in  this  and  the  subsequent  numbers  of  by  an  &c. 
52 


818  Appendix  to  Book  III. 

is  present  here  in  court,  ready  to  defend  the  same  by  his  body,  or  in  what 
manner  soever  the  Court  of  the  Lord  the  King  shall  consider  that  he  ought  to 
defend.  [*iv]  *And  if  any  mischance  should  befal  the  said  George,  (which  God 
defend,  he  is  ready  to  defend  the  same  by  another  man,  who  [is  bounden  and 
able  to  defend  it.]  [Replication]  And  the  said  William  Kent  saith,  that  the 
said  Richard  Allen  unjustly  defends  the  right  of  him  the  said  William,  and  his 
seisin,  &c.,  and  all,  &c.,  and  whatsoever,  &c.,  and  chiefly  of  the  tenements 
aforesaid  with  the  appurtenances,  as  of  fee  and  right,  &c. ;  because  he  saith, 
that  he  himself  was  seised  of  the  tenements  aforesaid,  with  the  appurtenances, 
in  his  demesne  as  of  fee  and  right,  in  the  time  of  peace,  in  the  time  of  the  said 
Ix)rd  Gkokge  the  First,  late  King  of  Great  Britain,  by  taking  the  esplees 
thereof  to  the  value,  &c.  [Joinder  of  battel.]  And  that  such  is  his  right,  he  is 
prepared  to  prove  by  the  body  of  his  freeman,  Henry  Broughton  by  name,  who 
is  present  here  in  Court  ready  to  prove  the  same  by  his  body,  or  in  what 
manner  soever  the  Court  of  the  Lord  the  King  shall  consider  that  he  ought  to 
prove;  and  if  any  mischance  should  befal  the  said  Henry,  (which  God  defend,) 
he  is  ready  to  prove  the  same  by  another  man,  who,  &c.  And  hereupon  it  is 
demanded  of  the  said  George  and  Henry,  whether  they  are  ready  to  make 
battel,  as  they  beefore  have  waged  it;  who  say  that  they  are.  [Gages  given] 
Axd  the  same  George  Rumbold  giveth  gage  of  defending,  and  the  said  Henry 
Brougliton  giveth  gage  of  proving;  and  such  engagement  being  given  as  the 
manner  is,  it  is  demanded  of  the  said  William  Kent  and  Richard  Allen,  if  they 
can  say  anything  wherefore  battel  ought  not  to  be  awarded  in  this  case;  who 
say  that  they  cannot.  [Award  of  Battel]  Therefore  it  is  considered,  that 
battel  be  made  thereon,  &c.  [Pledges]  And  the  said  George  Rumbold  findeth 
pledges  of  battel,  to  wit,  Paul  Jenkins  and  Charles  Carter;  and  the  said  Henry 
Broughton  findeth  also  pledges  of  battel,  to  wit,  Reginald  Read  and  Simon 
Taylor.  [Continuance]  And  thereupon  day  is  here  given  as  well  to  the  said 
William  Kent  as  to  the  said  Richard  Allen,  to  wit,  on  the  morrow  of  Saint 
Martin  next  coming,  by  the  assent  as  well  of  the  said  William  Kent  as  of  the 
said  Richard  Allen.  And  it  is  commanded  that  each  of  them  then  have  here 
his  champion,  sufficiently  furnished  with  competent  armour  as  becomes  him, 
and  ready  to  make  the  battel  aforesaid:  and  that  the  bodies  of  them  in  the 
mean  time  be  safely  kept,  on  peril  that  shall  fall  thereon.  [Champions  appear] 
At  which  day  here  come  as  well  the  said  William  Kent  as  the  said  Richard 
Allen  by  their  attornies  aforesaid,  and  the  said  George  Rumbold  and  Henrj' 
Broughton  in  their  proper  persons  likewise  come,  sufficiently  furnished  with 
competent  armour  as  becomes  them,  ready  to  make  the  battel  aforesaid,  as 
they  had  before  waged  it.  [Adjournment  to  Tothill  Fields]  And  hereupon 
day  is  further  given  by  the  court  here,  as  well  to  the  said  William  Kent  as  to 
the  said  Richard  Allen,  at  Tothill,  near  the  city  of  Westminster,  in  the  county 
of  Middlesex,  to  wit,  on  the  Morrow  of  the  Piirification  of  the  Blessed  Virgin 
Mary  next  coming,  by  the  assent  as  well  of  the  said  [*v]  'William  as  of  the 
aforesaid  Richard.  And  it  is  commanded,  that  each  of  them  have  then  there 
his  champion,  armed  in  the  form  aforesaid,  ready  to  make  the  battel  afore- 
said, and  that  their  bodies  in  the  mean  time,  &c.  At  which  day  here,  to  wit, 
at  Tothill  aforesaid,  comes  the  said  Richard  Allen  by  his  attorney  aforesaid, 
and  the  said  George  Rumbold  and  Henry  Broughton  in  their  proper  persons 
likewise  come,  sufficiently  furnished  with  competent  armour  as  becomes  them, 
ready  to  make  the  battel  aforesaid,  as  they  before  had  waged  it.  [Demandant 
nonsuit]  And  the  said  William  Kent  being  solemnly  called  doth  not  come,  nor 
liath  prosecuted  his  writ  aforesaid.  [Final  judgment  for  the  tenant]  Thebe- 
I'ORE  IT  IS  considered,  that  the  sa"me  William  and  his  pledges  of  prosecuting, 
to  wit,  John  Doe  and  Richard  Roe,  be  in  mercy  for  his  false  complaint,  and 
that  the  same  Richard  go  thereof  without  a  day,  &c.,  and  also  that  the  said 
Richard  do  hold  the  tenements  aforesaid  with  the  appurtenances,  to  him  and 
his  heirs,  quit  of  the  said  William  and  his  heirs,  for  ever,  &c. 


Appendix  to  Book  III.  ,  819 

Sect.  S.    'frial  by  the  Orand  A  ssize. 

[Defence]    And  the  said  Richard  Allen,  by  Peter  Jones,  his  attorney, 

comes  and  defends  the  right  of  the  said  William  Kent,  and  his  seisin,  when, 
&c.  and  all,  &c.  and  whatsoever,  &c.  and  chiefly  of  the  tenements  aforesaid 
with  the  appurtenances,  as  of  fee  and  right,  &c.  [Mise]  and  puts  himself  upon 
the  grand  assize  of  the  Lord  the  King,  and  prays  recognition  to  be  made, 
whether  he  himself  hath  greater  right  to  hold  the  tenements  aforesaid  with 
the  appurtenances  to  him  and  his  heirs  as  tenants  thereof  as  he  now  holdeth 
them,  or  the  said  William  to  have  the  said  tenements  with  the  appurtenances, 
as  he  above  demandeth  them.  [Tender  of  demi-mark]  Axd  he  tenders  here 
in  Ck)urt  six  shillings  and  eight-pence  to  the  use  of  the  Lord  the  now  King,  &c. 
for  that,  to  wit,  it  may  be  inquired  of  the  time  [of  the  seisin  alleged  by  the 
said  William.]  And  he  therefore  prays,  that  it  may  be  inquired  by  the  assize, 
whether  the  said  William  Kent  was  seised  of  the  tenements  aforesaid  with 
the  appurtenances  in  his  demesne  as  oi  fee  in  the  time  of  the  said  Lord  the 
King  George  the  First,  as  the  said  William  in  his  demand  before  hath  alleged. 
[Summons  of  the  knights]  Theeefore  it  is  commanded  the  sheriff,  that  he 
summon  by  good  summoners  four  lawful  knights  of  his  county,  girt  with 
swords,  that  they  be  here  on  the  octaves  of  Saint  Hilary  next  coming,  to  make 
election  of  the  assize  aforesaid.  The  same  day  is  given  as  well  to  the  said 
William  Kent  as  to  the  said  Richard  Allen  here,  &c.  At  which  day  here  come 
as  well  the  said  William  Kent,  as  the  said  Richard  Allen;  [Return]  and  the 
sheriff,  to  wit,  Sir  Adam  Alstone.  Knight,  now  returns,  that  he  had  caused 
to  be  summoned  Charles  Stephens,  Randel  Wheler,  Toby  Cox,  and  Thomas 
Munday.  four  lawful  knights  of  [*vi]  *his  country,  girt  with  swords,  bj'  John 
Doe  and  Richard  Roe  his  bailiffs,  to  be  here  at  the  said  octaves  of  Saint  Hilary, 
to  do  as  the  said  writ  thereof  commands  and  requires ;  and  that  the  said  sum- 
moners. ami  each  of  them,  are  mainprized  by  John  Day  and  James  Fletcher. 
[Election  of  the  recognitors]  Whereupon  the  said  Charles  Stephens,  Randel 
Wlieler.  Toby  Cox.  and  Thomas  Munday,  four  lawful  knights  of  the  county 
aforesaid,  girt  with  swords,  being  called,  in  their  proper  persons  come,  and 
being  sworn  upon  their  oath  in  the  presence  of  the  parties  aforesaid,  chose  of 
themselves  and  others  twenty-four,  to  wit,  Charls  Stephens,  Randel  Wheler, 
Toby  Cox.  Thomas  Munday,  Oliver  Greenway,  John  Boys,  Charles  Price, 
knights;  Daniel  Prince,  William  Day,  Roger  Lucas,  Patrick  Fleming,  James 
Harris.  Joiin  Richardson,  Alexander  Moore,  Peter  Payne,  Robert  Quin,  Archi- 
bald Stuart)  Bartholomew  Norton,  and  Henry  Davis,  esquires;  John  Porter, 
Christopher  Ball.  Benjamin  Robinson,  Lewis  Long,  William  Kirby,  gentlemen, 
good  and  lawful  men  of  the  county  aforesaid,  who  neither  are  of  kin  to  the 
said  William  Kent  nor  to  the  said  Richard  Allen,  to  make  recognition  of  the 
grand  assize  aforesaid.  [Venire  facias]  Therefore  it  is  commanded  the  sheriflF, 
that  he  cause  them  to  come  here  from  the  day  of  Easter  in  fifteen  days,  to 
make  the  recognition  aforesaid.  The  same  day  is  there  given  to  the  parties 
aforesaid.  [Recognitors  sworn]  At  which  day  here  come  as  well  the  said 
William  Kent  as  the  said  Richard  Allen,  by  their  attornies  aforesaid,  [Verdict 
for  the  demandant]  and  the  recognitors  of  the  assize,  whereof  mention  is  made 
above,  being  called  come,  and  certain  of  them,  to  wit,  Charles  Stephens,  Ran- 
del Wheler,"Toby  Cox,  Thomas  Munday,  Charles  Price,  knights;  Daniel  Prince, 
Roger  Lucas,  William  Day,  James  Harris,  Peter  Payne,  Robert  Quin,  Henry 
Davis.  John  Porter,  Christopher  Ball,  Lewis  Long,  and  William  Kirby,  being 
elected,  tried,  and  sworn  upon  their  oath  say,  that  the  said  William  Kent  hath 
more  right  to  have  the  tenements  aforesaid  with  the  appurtenances  to  him 
and  his  heirs,  as  he  demandeth  the  same,  than  the  said  Richard  Allen  to  hold 
the  same  as  he  now  holdeth  them,  according  as  the  said  William  Kent  by  his 
writ  aforesaid  hath  supposed.  [Judgment]  Therefore  it  is  considered,  that 
the  said  William  Kent  do  recover  his  seisin  against  the  said  Richard  Allen  of 
the  tenements  aforesaid,  with  the  appurtenances,  to  him  and  his  heirs,  quit 
of  the  sai('  Richard  Allen  and  his  heirs  for  ever:  and  the  said  Richard  Allen 
in  mercy,  &c. 

J 


820  ,  Appendix  to  Book  III. 

[•vii]  -No.  IL 

Proceedings  on  an  Action  of  Trespass  in  Ejectment,  by  Original, 

in  the  King's  Bench. 

Sect.  1.     The  Original  Writ. 

[Si  fecerit  te  securum]  GEORGp]  the  Second,  by  the  grace  of  God,  of  Great 
Britain,  France,  and  Ireland  King,  Defender  of  the  Faith,  and  so  forth,  to  the 
Sheriff  of  Berkshire,  greeting.  If  Richard  Smith  shall  give  you  security  of 
prosecuting  his  claim,  then  put  by  gage  and  safe  pledges  William  Stiles,  late 
of  Newbury,  gentleman,  so  that  he  be  before  us  on  the  morrow  of  All-Souls, 
wheresoever  we  shall  then  be  in  England,  to  show  wherefore  with  force  and 
arms  he  entered  into  one  messuage  with  the  appurtenances,  in  Sutton,  which 
John  Rogers,  Esquire,  hath  demised  to  the  aforesaid  Richard,  for  a  term  which 
is  not  yet  expired,  and  ejected  him  from  his  said  farm,  and  other  enormities 
to  him  did,  to  the  great  damage  of  the  said  Richard,  and  against  our  peace. 
And  have  you  there  the  names  of  the  pledges  and  this  writ.  Witness  ourself 
at  Westminster,,  the  twelfth  day  of  October,  in  the  twenty-ninth  year  of  our 
reign. 

[Sheriff's     return]     The  1 
Pledges  of        )  John  Doe,  within-named    William  '  John  Den. 

prosecution,      \  Richard  Roe.  Stiles    is    attached    by  (  Richard  Fen. 

pledges.  J 

Sect.  2.    Copy  of  the  Declaration  against  the  casual  Ejector,  who  gives  'Sotice 
thereupon  to  the  Tenant  in  Possession. 

Michaelmas,  the  29th  of  King  George  the  Second. 

Berks,  \  "William  Stiles,  late  of  Newbury  in  the  said  county,  gentleman, 
to  vAt.  I  was  attached  to  answer  Richard  Smith,  of  a  plea,  wherefore  with 
force  and  arms  he  entered  into  one  messuage  with  the  appurtenances,  in 
Sutton  in  the  county  aforesaid,  which  John  Rogers,  Esquire,  demised  to  the 
said  Richard  Smith  for  a  term  which  is  not  yet  expired,  and  ejected  him  from 
his  said  farm,  and  other  wrongs  to  him  did,  to  the  great  damage  of  the  said 
Richard,  and  against  the  peace  of  the  J.ord  the  King,  &c.  And  whereupon  the 
said  Richard  by  [*vii]  *Robert  Martin  his  attorney  complains,  that  whereas  the 
said'John  Rogers,  on  the  first  day  of  October,  in  the  twenty-ninth  year  of  the 
reign  of  the  Lord  the  King  that  now  is,  at  Sutton  aforesaid,  had  demised  to 
the  same  Richard  the  tenement  aforesaid,  with  the  appurtenances,  to  have  and 
to  hold  the  said  tenement,  with  the  appurtenances,  to  the  said  Richard  and 
his  assigns,  from  the  Feast  of  Saint  Michael  the  Archangel  then  last  past,  to 
the  end  and  term  of  five  years  from  thence  next  following  and  fully  to  be 
complete  and  ended,  by  virtue  of  which  demise  the  said  Richard  entered  into 
the  said  tenement,  with  the  appurtenances,  and  was  thereof  possessed;  and 
the  said  Richard  being  so  possessed  thereof,  the  said  William  afterwards,  that 
is  to  say,  on  the  said  first  day  of  October  in  the  said  twenty-ninth  year,  with 
force  and  arms,  that  is  to  say,  with  swords,  staves,  and  knives,  entered  into 
the  said  tenement,  with  the  appurtenances,  which  the  said  John  Rogers 
demised  to  the  said  Richard  in  form  aforesaid  for  the  term  aforesaid,  wliich 
is  not  yet  expired,  and  ejected  the  said  Richard  out  of  his  said  farm,  and  other 
wrongs  to  him  did,  to  the  great  damage  of  the  said  Richard,  and  against  the 
peace  of  the  said  Lord  the  King;  whereby  the  said  Richard  saith,  that  he  is 
injured  and  damaged  to  the  value  of  twenty  pounds.    And  thereupon  he  brings 


Buit,  &c. 
Martii 
Peters,  for  the  defendant,    f  prosecution.    /  Richard  Roe. 


Martin,  for  the  plaintiff,      )  Pledges  of      \  John  Doe, 

1.  ;- 


Appendix  to  Book  III.  821 

[Notice.] 

Mr.  George  Saunders, 

I  am  informed  that  you  are  in  possession  of,  or  claim  title  to,  the  premisea 
mentioned  in  this  declaration  of  ejectment,  or  to  some^  part  thereof;  and  I, 
being  sued  in  this  action  as  a  casual  ejector,  and  having  no  claim  or  title  to 
the  same,  do  advise  you  to  appear  next  Hilary  Terra  in  his  Majesty's  Court 
of  King's  Bench  at  Westminster,  by  some  attorney  of  that  Court,  and  then 
and  there  by  a  rule  to  be  made  of  the  same  Court,  to  cause  yourself  to  be  made 
defendant  in  my  stead;  otherwise  I  shall  suffer  judgment  to  be  entered  against 
me,  and  you  will  be  turned  out  of  possession. 

Your  loving  friend, 

William  Stiles, 

5th  January,  1756. 

[•ix]  "Sect.  3.     The  Rule  of  Court. 

Hilary  Term,  in  the  twenty-ninth  Year  of  King  George  the  Second. 

Berks,  <  It  is  ordered  by  the  Court,  by  the  assent  of  both  parties,  and  their 
to  wit.  \  attornies,  that  George  Saunders,  gentleman,  may  be  made  defend- 
ant, in  the  place  of  the  now  defendant,  William  Stiles,  and  shall  immediately 
appear  to  the  plaintiff's  action,  and  shall  receive  a  declaration  in  a  plea  of 
trespass  and  ejectment  of  the  tenements  in  question,  and  shall  immediately 
plead  thereto  Not  Guilty:  and,  upon  the  trial  of  the  issue,  shall  confess  lease, 
entry,  and  ouster,  and  insist  upon  his  title  only.  And  if  upon  the  trial  of  the 
issue,  the  said  George  do  not  confess  lease,  entry,  and  ouster,  and  by  reason 
thereof  the  plaintiff  cannot  prosecute  his  writ,  then  the  taxation  of  costs  upon 
such  nan  pros,  shall  cease,  and  the  said  George  shall  pay  such  costs  to  the 
plaintiff,  as  by  the  Court  of  our  Lord  the  King  here  shall  be  taxed  and  ad- 
judged, for  such  his  default  in  non-performance  of  this  rule;  and  judgment 
shall  be  entered  against  the  said  William  Stiles,  now  the  casual  ejector,  by 
default.  And  it  is  further  ordered,  that  if  upon  the  trial  of  the  said  issue  a 
verdict  shall  be  given  for  the  defendant,  or  if  the  plaintiff  shall  not  prosecute 
his  writ  upon  any  other  cause  than  for  the  not  confessing  lease,  entry,  and 
ouster  as  aforesaid,  then  the  lessor  of  the  plaintiff  shall  pay  costs,  if  the 
plaintiff  himself  doth  not  pay  them. 

By  the  Court. 

Martin,  for  the  plaintiff, 

Newman,  for  the  defendant. 

Sect.  4.    The  Record'. 

Pleas  before  the  Lord  the  King  at  Westminster,  of  the  Term  of  Saint  Hilary, 
in  the  twenty-ninth  Year  of  the  Reign  of  the  Lord  George  the  Second, 
by  the  grace  of  God,  of  Great  Britain,  France,  and  Ireland  King,  Defender 
of  the  Faith,  &c. 

Berls,  \  George  Saunders,  late  of  Sutton  in  the  county  aforesaid,  gentle- 
to  wit.  }  man,  was  attached  to  answer  Richard  Smith,  of  a  plfea,  wherefore 
with  force  and  arms  he  entered  into  one  messuage,  with  the  appurtenances,  in 
Sutton,  which  John  Rogers,  Esq.  hath  demised  to  the  said  Richard  for  a  term 
which  is  not  yet  expired,  and  ejected  him  from  his  said  farm,  and  other 
wrongs  to  him  did,  to  the  great  damage  of  the  said  Richard,  and  against  the 
peace  of  the  Lord  the  King  that  [*x]  *now  is.  [Declaration,  or  count]  And 
Whereupon  the  said  Richard  by  Robert  Martin,  his  attorney,  complains,  that 
whereas  the  said  John  Rogers  on  the  first  day  of  October  in  the  twenty-ninth 
year  of  the  reign  of  the  Lord  the  King  that  now  is,  at  Sutton  aforesaid,  had 
demised  to  the  same  Richard  the  tenement  aforesaid,  with  the  appurtenances, 
to  have  and  to  hold  the  said  tenement,  with  the  appurtenances,  to  the  said 
Richard  and  his  assigns,  from  the  feast  of  Saint  Michael  the  Archangel  then 


822  Appendix  to  Book  III. 

last  past,  to  the  end  and  term  of  five  years  from  thence  next  following  and 
fully  to  be  complete  and  ended;  by  virtue  of  which  demise  the  said  Richard 
entered  into  the  said  tenement,  with  the  appurtenances,  and  was  thereof 
possessed:  and,  the  said  Richard  being  so  possessed  thereof,  the  said  George 
afterwards,  that  is  to  say,  on  the  first  day  of  October  in  the  said  twenty- 
ninth  year,  with  forc'e  and  arms,  that  is  to  say,  with  swords,  staves,  and 
knives,  entered  into  the  said  tenement  with  the  appurtenances,  which  the  said 
John  Rogers  demised  to  the  said  Richard  in  form  aforesaid  for  the  term  afore- 
said, which  is  not  yet  expired,  and  ejected  the  said  Richard  out  of  his  said 
farm,  and  other  wrongs  to  him  did,  to  the  great  damage  of  the  said  Richard, 
and  against  the  peace  of  the  said  Lord  the  King;  whereby  the  said  Richard 
saith  tliat  he  is  injured  and  endamaged  to  the  value  of  twenty  pounds;  and 
thereupon  he  brings  suit,  [and  good  proof.]  [Defence]  And  the  aforesaid 
George  Sanders,  by  Charles  Newman,  his  attorney  comes  and  defends  the  force 
and  injury,  wlien  [and  where  it  shall  behove  him;]  [Plea,  not  guilty]  and 
saith  that  he  is  in  no  wise  guilty  of  the  trespass  and  ejectment  aforesaid,  as 
the  said  Richard  above  complains  against  him;  [Issue]  and  thereof  he  puts 
himself  upon  the  country;  and  the  said  Ricliard  doth  likewise  the  same; 
[Venire  awarded]  Therefore  let  a  jury  come  thereupon  before  the  Lord  the 
King,  on  the  octave  of  the  purification  of  the  blessed  Virgin  Mary» 
wheresoever  he  shall  then  be  in  England,  who  neither  [are  of  kin  to  the  said 
Richard,  nor  to  the  said  George,]  to  recognize  [whether  the  said  George  be 
guilty  of  the  trespass  and  ejectment  aforesaid;]  because  as  well  [the  said 
George  as  the  said  Richard,  between  wliom  the  difference  is,  have  put  them- 
selves on  the  said  jury.]  The  same  day  is  there  given  to  the  parties  aforesaid. 
[Respite,  for  default  of  jurors]  Afterwards  the  process  therein,  being  con- 
tinued between  the  said  parties  of  the  plea  aforesaid  by  the  jury,  is  put 
between  them  in  respite,  before  the  Lord  the  King,  until  the  day  of 
Easter  in  fifteen  days,  [Nisi  prius]  wheresoever  the  said  Lord  the  King  shall 
then  be  in  England;  unless  the  justices  of  the  Lord  the  King  assigned  to  take 
assises  in  the  county  aforesaid,  shall  have  come  before  that  time,  to  wit,  on 
Monday  the  eighth  day  of  March,  at  Reading  in  the  said  county,  by  the  form 
of  the  statute  [in  that  case  provided],  by  reason  of  the  default  of  the  jurors, 
[summoned  to  appear  as  aforesaid.]  At  which  day  before  the  Lord  the  King, 
at  Westminster,  come  the  parties  aforesaid  by  their  attornies  aforesaid;  and 
the  aforesaid  justices  of  [*xi]  'assise,  before  whom  [the  jury  aforesaid  came,] 
sent  here  their  record  before  them,  had  in  these  words,  to  wit.  [Postea]  After- 
wards, at  the  day  and  place  within  contained,  before  Heneage  Legger,  Esquire, 
one  of  the  Barons  of  the  Exchequer  of  the  Lord  the  King,  and  Sir  John  Eardley 
Wilmot,  Knight,  one  of  the.  justices  of  the  said  Lord  the  King,  assigned  to 
hold  pleas  before  the  King  himself,  justices  of  the  said  Lord  the  King,  assigned 
to  take  assises  in  the  county  of  Berks  by  the  form  of  the  statute  [in  that  case 
provided,]  come  as  well  the  within-named  Richard  Smith,  as  the  within-written 
George  Saunders,  by  their  attornies  within  contained;  and  the  jurors  of  the 
jury  whereof  mention  is  within  made  being  called,  certain  of  them,  to  wit, 
Charles  Holloway,  John  Hooke,  Peter  Graham,  Henry  Cox,  William  Brown, 
and  Francis  Oakley,  come,  and  are  sworn  upon  that  jury;  and  because  the 
rest  of  the  jurors  of  the  same  jury  did  not  appear,  [Tales  de  circumstantibus] 
therefore  others  of  the  by-standers  being  chosen  by  the  sheriff,  at  the  request 
of  the  said  Richard  Smith,  and  by  the  command  of  the  justices  aforesaid,  are 
appointed  anew,  whose  names  are  affixed  to  the  panel  within  written,  accord- 
ing to  the  form  of  the  statute  in  such  case  made  and  provided;  which  said 
jurors  so  appointed  anew,  to  wit,  Roger  Bacon,  Thomas  Small.  Charles  Pye, 
Edward  Hawkins,  Samuel  Roberts,  and  Daniel  Parker,  being  likewise  called, 
come;  and  together  witli  the  otl\er  jurors  aforesaid  before  impanelled  and 
sworn,  being  elected,  tried,  and  sworn,  to  speak  the  truth  of  the  matter  within 
contained,  [Verdict  for  the  plaintiff]  upon  their  oath  say,  that  the  aforesaid 
George  Saunders  is  guilty  of  the  trespass  and  ejectment  within-written,  in 
manner  and  form  as  the  aforesaid  Richard  Smith  within  complains  against 


Appendix  to  Book  III.  823 

him;  and  assess  the  damages  of  the  said  Richard  Smith,  on  occasion  of  that 
trespass  and  ejectment,  besides  his  costs  and  charges  which  he  hath  been  put 
unto  about  his  suit  in  that  behalf,  to  twelve  pence;  and,  for  those  costs  and 
charges,  to  forty  shillings.  Whereupon  the  said  Richard  Smith,  by  his 
attorney  aforesaid  prayeth  judgment  against  the  said  George  Saunders,  in 
and  upon  the  verdict  aforesaid  by  the  jurors  aforesaid  given  in  the  form  afore- 
said; [Motion  in  arrest  of  judgment]  and  the  said  George  Saunders,  by  his 
attorney  aforesaid  saith,  that  the  court  here  ought  not  to  proceed  to  give  judg- 
ment upon  the  said  verdict,  and  prayeth  that  judgment  against  him  the  said 
George  Saunders,  in  and  upon  the  verdict  aforesaid  by  the  jurors  aforesaid 
given  in  the  form  aforesaid,  may  be  stayed,  by  reason  that  the  said  verdict 
is  insuflficient  and  erroneous,  and  that  the  same  verdict  may  be  quashed,  and 
that  the  issue  aforesaid  may  be  tried  anew  by  other  jurors  to  be  afresh  im- 
panelled. [Continuance]  And,  because  the  court  of  the  Lord  the  King  here  is 
not  yet  advised  of  giving  their  judgment  of  and  upon  the  premises,  therefore 
day  thereof  is  given  as  well  to  the  said  Richard  Smith  as  the  said  George 
Saunders,  before  the  Lord  the  King,  until  the  morrow  of  the  Ascension  of  our 
Lord,  wheresoever  the  said  Lord  [*xii]  *the  King  shall  then  be  in  England,  to 
hear  their  judgment  of  and  upon  the  premises,  for  that  the  court  of  the  Lord 
the  King  is  not  yet  advised  thereof.  At  which  day  before  the  Lord  the  King 
at  Westminster,  came  the  parties  aforesaid  by  their  attornies  aforesaid; 
[Opinion  of  the  court]  upon  which,  the  record  and  matters  aforesaid  having 
been  seen,  and  by  the  court  of  the  Lord  the  King  now  here  fully  understood, 
and  all  and  singular  the  premises  having  been  examined,  and  mature  delibera- 
tion being  had  thereupon,  for  that  it  seems  to  the  court  of  the  Lord  the  King 
now  here  that  the  verdict  aforesaid  is  in  no  wise  insufficient  or  erroneous,  and 
that  the  same  ought  not  to  be  quashed,  and  that  no  new  trial  ought  to  be  had 
of  the  issue  aforesaid.  [Judgment,  for  the  plaintiff]  Therefore  it  is  con- 
sidered, that  the  said  Richard  do  recover  against  the  said  George  his  term  yet 
to  come,  of  and  in  the  said  tenements,  witli  the  appurtenances,  and  the  said 
damages  assessed  by  the  said  jury  in  form  aforesaid,  [Costs]  and  also  twenty- 
seven  pounds  six  shillings  and  eight-pence  for  his  costs  and  charges  aforesaid, 
by  the  court  of  the  Lord  the  King  here  awarded  to  the  said  Richard,  with  his 
assent,  by  way  of  increase;  which  said  damages  in  the  whole  amount  to 
twenty-nine  pounds,  seven  shillings  and  eight-pence.  [Capiatur  pro  fine]  "And 
let  the  said  George  be  taken,  [until  he  maketh  fine  to  the  Lord  the  King].''t 
[Writ  of  possession]  And  hereupon  the  said  Richard,  by  his  attorney  afore- 
said, prayeth  a  writ  of  the  Lord  the  King,  to  be  directed  to  the  sheriff  of  the 
county  aforesaid,  to  cause  him  to  have  possession  of  his  term  aforesaid  yet  to 
come,  of  and  in  the  tenements  aforesaid,  with  the  appurtenances;  and  it  is 
granted  unto  him,  returnable  before  the  Lord  the  King  on  the  morrow  of  the 
Holy  Trinity,  wheresoever  he  shall  then  be  in  England.  [And  return]  At 
which  day  before  the  Lord  the  King,  at  Westminster,  cometh  the  said  Richard, 
by  his  attorney  aforesaid;  and  the  sheriff,  that  is  to  say.  Sir  Thomas  Reeve, 
Knight,  now  sendeth,  that  he  by  virtue  of  the  writ  aforesaid  to  him  directed, 
on  the  ninth  day  of  June  last  past,  did  cause  the  said  Richard  to  have  his 
possession  of  his  term  aforesaid  yet  to  come,  of  and  in  the  tenements  afore- 
said, with  the  appurtenances,  as  he  was  commanded. 

t  Now  omitted. 


824  Appendix  to  Book  III. 

[•xiii]  *No.  III. 

Proceedings  on  an  Action  of  Debt  in  the  Court  of  Common  Pleas; 
removed  into  the  King's  Bench  by  Writ  of  Error. 

Sect.  1,     Original. 

[Praecipe]  George  the  Second,  by  the  grace  of  God,  of  Great  Britain,  France, 
and  Ireland  King,  Defender  of  the  Faith,  and  so  forth;  to  the  sheriff  of  Ox- 
fordshire, greeting.  Command  Charles  Long,  late  of  Burford,  gentleman,  that 
justly  and  without  delay  he  render  to  William  Burton  two  hundred  pounds, 
which  he  owes  him  and  unjustly  detains,  as  he  saith.  And  unless  he  shall  so 
do,  and  if  the  said  William  shall  make  you  secure  of  prosecuting  his  claim, 
then  summon  by  good  summoners  the  aforesaid  Charles,  that  he  be  before  our 
justices,  at  Westminster,  on  the  octave  of  Saint  Hilary,  to  show  wherefore 
he  hath  not  done  it.  And  have  you  there  then  the  summoners,  and  this  writ. 
Witness  ourself  at  Westminster,  the  twenty-fourth  day  of  December,  in  the 
twenty-eighth  year  of  our  reign. 

Pledges  of     j  John  Doe,  [Sheriff's    return]    Sura-  )  Rogeb  Mobbis, 

prosecution,  \  Richabd  Roe.  STraed^Charles^rnt       )  ^^''^'^  Johnsox. 

Sect.  2.     Process. 

[Attachment]  George  the  Second,  by  the  grace  of  God,  of  Great  Britain, 
France,  and  Ireland  King,  Defender  of  the  Faith,  and  so  forth ;  to  the  sheriff 
of  Oxfordshire,  greeting.  [Pone]  Put  by  gage  and  safe  pledges  Charles  Long, 
late  of  Burford,  gentleman,  that  he  be  before  our  justices  at  Westminster,  on 
the  octave  of  the  purification  of  the  blessed  Mary,  to  answer  to  William 
Burton  of  a  plea,  that  he  render  to  him  two  hundred  pounds  which  he  owes 
him  and  unjustly  detains,  as  he  saith;  and  to  show  wherefore  he  was  not 
before  our  justices  at  Westminster  on  the  octave  of  Saint  Hilary,  as  he  was 
summoned.  And  have  there  then  the  names  of  the  pledges  and  this  writ. 
Witness,  Sir  John  Willes,  Knight,  at  Westminster,  the  twenty-third  day  of 
January,  in  the  twenty -eighth  year  of  our  reign. 

[Sheriff's  return]  The  within-named  Charles  Long )  Edward  Leigh. 
is  attached  by  Pledges,  )  Robert  Tanner. 

[Distringas]  [*xiv]  *George  the  Second,  by  the  grace  of  God,  of  Great  Britain, 
France,  and  Ireland  King,  Defender  of  the  Faith,  and  so  forth ;  to  the  sheriff 
of  Oxfordshire,  greeting.  We  command  you,  that  you  distrein  Charles  Long, 
late  of  Burford,  gentleman,  by  all  his  lands  and  chattels  within  your  bailiwick, 
so  that  neither  he  nor  any  one  through  him  may  lay  hands  on  the  same,  until 
you  shall  receive  from  us  another  command  thereupon:  and  that  you  answer 
to  us  of  the  issues  of  the  same;  and  that  you  have  his  body  before  our  justices 
at  Westminster  from  the  day  of  Easter  in  fifteen  days,  to  answer  to  William 
Burton  of  a  plea,  that  he  render  to  him  two  hundred  pounds  which  he  owes 
him  and  unjustly  detains,  as  he  saith,  and  to  hear  his  judgment  of  his  many 
defaults.  Witness,  Sir  John  Wiles,  Knight,  at  Westminster,  the  twelfth  day 
of  February,  in  the  twenty-eighth  year  of  our  reign. 

[Sheriff's  return.  Nihil]  The  within  named  Charles  Long  hath  nothing  in 
my  bailiwick,  whereby  he  may  be  distreined. 

[Capias  ad  respondendum]  Gb;orge  the  Second,  by  the  grace  of  God,  of  Great 
Britain,  France,  and  Ireland  King,  Defender  of  the  Faith,  and  so  forth;  to  the 
Sheriff  of  Oxfordshire  greeting.     We  command   you,   that  you  take   Charlea 


Appendix  to  Book  III.  825 

Long,  late  of  Burford,  gentleman,  if  he  may  be  found  in  your  bailiwick,  and 
hJm  safely  keep,  so  that  you  may  have  his  body  before  our  justices  at  West- 
minster from  the  day  of  Easter  in  five  weeks,  to  answer  to  William  Burton, 
gentleman,  of  a  plea,  that  he  render  to  him  two  hundred  pounds,  which  he 
owes  him  and  unjustly  detains,  as  he  saith;  and  whereupon  you  have  returned 
to  our  justices  at  Westminster,  that  the  said  Charles  bath  nothing  in  your 
bailiwick,  whereby  he  may  be  distreined.  And  have  you  there  then  this  writ. 
Witness,  Sir  John  Willes,  Knight,  at  Westminster,  the  sixteenth  day  of  April, 
in  the  twenty-eighth  year  of  our  reign. 

[Sheriff's  return.  Non  est  inventus]  The  within  named  Charles  Long  is  not 
found  in  my  bailiwick. 

[Testatum  capias]  George  the  Second,  by  the  grace  of  God,  of  Great  Britain, 
France,  and  Ireland  King,  Defender  of  the  Faith,  and  so  forth;  to  the  SherifT 
of  Berkshire,  greeting.  We  command  you,  that  you  take  Charles  Long,  late 
of  Burford,  gentleman,  if  he  may  be  found  in  your  bailiwick,  and  him  safely 
keep,  so  that  you  may  have  his  body  before  our  justices  at  Westminster,  on 
the  morrow  of  the  Holy  Trinity,  to  answer  to  William  Burton,  Gentleman,  of 
a  plea,  that  he  render  to  him  two  hundred  pounds,  which  he  owes  him  and 
unjustly  detains,  as  he  saith;  and  whereupon  our  Sheriff  of  Oxfordshire  hath 
made  a  return  to  our  justices  at  Westminster,  at  a  certain  day  now  past,  that 
the  [*xv]  *aforesaid  Charles  is  not  found  in  his  bailiwick;  and  thereupon  it  is 
testified  in  our  said  Court,  that  the  aforesaid  Charles  lurks,  wanders,  and  runs 
about  in  your  county.  And  have  you  there  then  this  writ.  Witness,  Sir 
John  Willes,  Knight,  at  Westminster,  the  seventh  day  of  May,  in  the  twenty- 
eighth  year  of  our  reign. 

[Sheriff's  return.  Cepi  corpus]  By  virtue  of  this  writ  to  me  directed,  I  have 
taken  the  body  of  the  within  named  Charles  Long;  which  I  have  ready  at  the 
day  and  place  within  contained,  according  as  by  this  writ  it  is  commanded  me. 

Or,  upon  the  Return  of  Non  est  inventus  upon  the  first  Capias,  the  Plaintiff 
may  sue  out  an  Alias  and  a  Pluries,  and  thence  proceed  to  Outlawry: 
thus : 

[Alias  capias]  George  the  Second,  by  the  grace  of  God.  of  Great  Britain, 
France,  and  Ireland  King,  Defender  of  the  Faith,  and  so  forth;  to  the  Sheriff 
of  Oxfordshire  greeting.  We  command  you  as  formerly  w-e  commanded  you, 
that  you  take  Charles  Long,  late  of  Burford,  Gentleman,  if  he  may  be  found 
in  your  bailiwick,  and  him  safely  keep,  so  that  you  may  have  his  body  before 
our  justices  at  Westminster,  on  the  morrow  of  the  Holy  Trinity,  to  answer  to 
William  Burton,  Gentleman,  of  a  plea,  that  he  render  to  him  two  hundred 
pounds,  which  he  owes  him  and  unjustly  detains,  as  he  saith.  And  have  you 
there  then  this  writ.  Witness,  Sir  John  Willes,  Knight,  at  Westminster,  the 
seventh  day  of  May,  in  the  twenty-eighth  year  of  our  reign. 

[Sheriff's  return.  Non  est  inventus]  The  within  named  Charles  Long  is  not 
found  in  my  bailiwick. 

[Pluries  capias]  George  the  Second,  by  the  grace  of  God,  of  Great  Britain, 
France,  and  Ireland  King,  Defender  of  the  Faith,  and  so  forth;  to  the  Sheriff 
of  Oxfordshire  greeting.  We  coinmand  you.  as  we  have  more  than  once  com- 
manded you,  that  you  take  Charles  Long,  late  of  Burford,  Gentleman,  if  he 
may  be  found  in  your  bailiwick,  and  him  safely  keep,  so  that  you  may  have 
his  body  befo-re  our  justices  at  Westminster,  from  the  day  of  the  Holy  Trinity 
in  three  weeks,  to  answer  to  William  Burton.  Gentleman,  of  a  plea,  that  he 
render  to  him  two  himdred  pounds,  which  he  owes  him  and  unjustly  detains, 
as  he  saith.  And  have  you  there  then  this  writ.  Witness,  Sir  John  Willes, 
Kniglit.  at  Westminster,  the  thirtieth  day  of  May,  in  the  tM'enty-eighth  year 
of  our  reign. , 


826  Appendix  to  Book  III. 

[Sheriff's  retam.  Non  est  invefotus]  The  within  named  Charles  Long  is  not 
found  in  my  bailiwick. 

[Exigi  facias]  [*xvi]  •George  the  Second,  by  the  grace  of  God,  of  Great 
Britain,  France,  and  Ireland  King,  Defender  of  the  Faith,  and  so  forth;  to  the 
Sheriff  of  Oxfordshire  greeting.  We  command  you,  that  you  cause  Charles 
Long,  late  of  Burford,  Gentleman,  to  be  required  from  county  court  to  county 
court,  until,  according  to  the  law  and  custom  of  our  realm  of  England,  he  be 
outlawed,  if  he  doth  not  appear:  and  if  he  doth  appear,  then  take  him  and 
cause  him  to  be  safely  kept,  so  that  you  may  have  his  body  before  our  justices 
at  Westminster,  on  the  morrow  of  All  Souls,  to  answer  to  William  Burton, 
Gentleman,  of  a  plea,  that  he  render  to  him  two  hundred  pounds,  which  he 
owes  him  and  unjustly  detains,  as  he  saith;  and  whereupon  you  have  returned 
to  our  justices  at  Westminster,  from  the  day  of  the  Holy  Trinity  in  three 
weeks,  that  he  is  not  found  in  your  bailiwick.  And  have  you  there  then  this 
writ.  Witness,  Sir  John  Willes,  Knight,  at  Westminster,  the  eighteenth  day 
of  June,  in  the  twenty-eighth  year  of  our  reign. 

[Sheriff's  return}  By  virtue  of  this  writ  to  me  directed,  at  my  county  court 
held  at  Oxford,  in  the  county  of  Oxford,  on  Thursday  the  twenty-first  day  of 
June,  in  tlie  twenty-ninth  year  of  the  reign  of  the  Lord  the  King  within 
written,  [Primo  exactus]  tlie  within  named  Charles  Long  was  required  the 
first  time,  and  did  not  appear:  and  at  my  county  court  held  at  Oxford  afore- 
said, on  Thursday  the  twenty-fourth  day  of  July  in  the  year  aforesaid, 
[Secundo  exactus]  the  said  Charles  Long  was  required  the  second  time,  and 
did  not  appear:  and  at  my  county  court  held  at  Oxford  aforesaid,  on  Thursday 
the  twenty-first  day  of  August  in  the  year  aforesaid,  [Tertio  exactus]  the  said 
Charles  Long  was  required  the  third  time,  and  did  not  appear:  and  at  my 
county  court  held  at  Oxford  aforesaid,  on  Thursday,  the  eighteenth  day  of 
September  in  the  year  aforesaid,  [Quarto  exactus]  the  said  Charles  Long  was 
required  the  fourth  time,  and  did  not  appear:  and  at  my  county  court  held  at 
Oxford  aforesaid,  on  Thursday  the  sixteenth  day  of  October  in  the  year  afore- 
said, [Quinto  exactus]  the  said  Charles  Long  was  required  the  fifth  time,  and 
did  not  appear:  [Ideo  utlagatus]  tlierefore  the  said  Charles  Long,  by  the  judg- 
ment of  the  coroners  of  the  said  Lord  the  King,  of  the  county  aforesaid,  accord- 
ing to  the  law  and  custom  of  the  kingdom  of  England,  is  outlawed. 

[Writ  of  proclamation]  George  the  Second,  by  the  grace  of  God,  of  Great 
Britain,  France,  and  Ireland  King,  Defender  of  the  Faith,  and  so  forth;  to  the 
Sheriff  of  Oxfordshire,  greeting.  Whereas  by  our  writ  we  have  lately  com- 
manded you  that  you  should  cause  Charles  Long,  late  of  Burford,  Gentleman, 
to  be  required  from  county  court  to  county  court,  until,  according  to  [*xvii] 
*the  law  and  custom  of  our  realm  of  England  he  should  be  outlawed,  if  he  did 
not  appear:  and  if  he  did  appear,  tlien  that  you  should  take  him  and  cause 
him  to  be  safely  kept,  so  that  you  might  have  his  body  before  our  justices  at 
Westminster,  on  the  morrow  of  All  Souls,  to  answer  to  William  Burton, 
Gentleman,  of  a  plea,  that  he  render  to  him  two  hundred  pounds,  which  he 
owes  him  and  imjustly  detains,  as  he  saith:  Therefore  we  command  you,  by 
virtue  of  the  statute  in  the  thirty-first  year  of  the  Lady  Elizabeth,  late  Queen 
of  England,  made  and  provided,  that  you  cause  the  said  Charles  Long  to  be 
proclaimed  upon  three  several  dstys  according  to  the  form  of  that  statute; 
(whereof  one  proclamation  shall  be  made  at  or  near  the  most  usual  door  of 
the  church  of  the  parish  wherein  he  inhabits)  that  he  render  himself  unto  you; 
so  that  you  may  have  his  body  before  our  justices  at  Westminster  at  the  day 
aforesaid,  to  answer  the  said  William  Burton  of  the  plea  aforesaid.  And  have 
you  there  then  this  writ.  Witness,  Sir  John  Willes,  Knight,  at  Westminster, 
the  eighteenth  day  of  June,  in  the  twenty-eighth  year  of  our  reign. 

[Sheriff's  return.  Proclamari  feci]  By  virtue  of  this  writ  to  me  directed,  at 
my  county  court  held  at  Oxford,  in  the  county  of  Oxford,  on  Thursday  the 


Appendix  to  Book  III.  82T 

twenty-sixth  day  of  June,  in  the  twenty-ninth  year  of  the  reign  of  the  Lord 
the  King  within  written,  I  caused  to  be  proclaimed  the  first  time;  and  at  the 
general  quarter  sessions  of  the  peace,  held  at  Oxford  aforesaid,  on  Tuesday 
the  fifteenth  day  of  July  in  the  year  aforesaid,  I  caused  to  be  proclaimed  the 
second  time;  and  at  the  most  usual  door  of  the  church  of  Burford  within 
written,  on  Sunday  the  third  day  of  August  in  the  year  aforesaid,  immediately 
after  divine  serAdce,  one  montli  at  the  least  before  the  within  named  Charles 
Long  was  required  the  fifth  time,  I  caused  to  be  proclaimed  the  third  time, 
that  the  said  Charles  Long  should  render  himself  unto  me,  as  within  it  is 
commanded  me. 

[Capias  utiagatum]  George  the  Second,  by  tlie  grace  of  God,  of  Great 
Britain,  France,  and  Ireland  King,  Defender  of  the  Faith,  and  so  forth;  to  the 
Sheriff  of  Berkshire  greeting.  We  command  you,  that  you  omit  not  by  reason 
of  any  liberty  of  your  county,  but  that  you  take  Charles  Long,  late  of  Burford 
in  the  county  of  Oxford,  Gentleman,  (being  outlawed  in  the  said  county  of 
Oxford,  on  Thursday  the  sixteenth  day  of  October  last  past,  at  the  suit  of 
William  Burton,  Gentleman,  of  a  plea  of  debt,  as  the  Sheriflf  of  Oxfordshire 
aforesaid  returned  to  our  justices  at  Westminster  on  the  morrow  of  All  Souls 
then  next  ensuing)  if  the  said  Charles  Long  may  be  found  in  your  bailiwick; 
and  him  safely  keep,  so  that  you  may  [*xviii]  *have  his  body  before  our  justices 
at  Westminster  from  the  day  of  St.  Martin  in  fifteen  days  to  do  and  receive 
what  our  Court  shall  consider  concerning  him  in  this  behalf.  Witness,  Sir 
John  Willes,  Knight,  at  Westminster,  the  sixth  day  of  November,  in  the 
twenty-ninth  year  of  our  reign. 

[Sheriff's  return.  Cepi  corpus]  By  virtue  of  this  writ  to  me  directed,  I  have 
taken  the  body  of  the  within  named  Charles  Long;  which  I  have  ready  at  the 
4ay  and  place  within  contained,  according  as  by  this  writ  it  is  commanded  me. 

Sect.  3.    fBill  of  Middlesex,  and  Latitat  thereupon  in  the  Court  of  Kino's 

Bench. 

•  to  wit.  \  [Bill  of  Middlesex  for  trespass]  The  Sheriff  is  commanded 
Middlesex,  )  that  he  take  Charles  Long,  late  of  Burford,  in  the  county  of 
Oxford,  if  he  may  be  found  in  his  bailiwick,  and  him  safely  keep,  so  that  he 
may  have  his  body  before  the  Lord  the  King  at  Westminster,  on  Wednesday 
next  after  fifteen  days  of  Easter,  to  answer  William  Burton,  Gentleman,  of  a 
plea  of  trespass;  [Ac  etiam  in  debt]  [and  also  to  a  bill  of  the  said  William 
against  the  aforesaid  Charles,  for  two  hundred  pounds  of  debt,  according  to 
the  custom  of  the  court  of  the  said  Lord  the  King,  before  the  King  himself 
to  be  exhibited;]  and  that  he  have  there  then  this  precept. 

[Sheriff's  return.  Non  est  inventus]  The  within  named  Charles  Long  is  not 
found  in  my  bailiwick. 

[Latitat]  George  the  Second,  by  the  grace  of  God,  of  Great  Britain,  France, 
and  Ireland  King,  Defender  of  the  Faith,  and  so  forth;  to  the  Sheriff  of  Berk- 
shire, greeting.  Whereas  we  lately  commanded  our  Sheriff  of  Middlesex  that 
he  should  take  Charles  Long,  late  of  Burford,  in  the  county  of  Oxford,  if  he 
might  be  found  in  his  bailiwick,  and  him  safely  keep,  so  that  he  might  be 
before  us  at  Westminster,  at  a  certain  day  now  past,  to  answer  unto  William 
Burton,  Gentleman,  of  a  plea  of  trespass;   [Ac  etiam]   [and  also  to  a  bill  of 

t  Note,  that  sect.  3.  and  4.  are  the  pally  differ  from  that  of  the  Court  of 

usual  method  of  process,  to  compel  an  Common  Pleas;  the  subsequent  stages 

appearance   in   the   Courts   of   King's  of   proceeding   being   nearly   alike   in 

Bench  and   Exchequer;   in  which  tha  them  all. 
practice  of  those  courts  does  princi- 


828  Appendix  to  Book  III. 

the  said  William  against  the  aforesaid  Charles,  for  two  hundred  pounds  of 
debt,  according  to  the  custom  of  our  court,  before  us  to  be  exhibited;]  and  our 
said  Sheriff  of  Middlesex  at  that  day  returned  to  us  that  the  aforesaid  Charley 
was  not  found  in  his  bailiwick;  whereupon  on  the  behalf  of  the  aforesaid 
William  in  our  court  before  us  it  is  sufficiently  attested  that  the  aforesaid 
Charles  lurks  and  runs  about  in  your  county :  Thkbefore  we  command  you, 
that  you  take  him,  if  he  may  be  found  in  [*xix]  *your  bailiwick,  and  him  safely 
keep,  so  that  you  may  have  his  body  before  us  at  Westminster,  on  Tuesday 
next  after  five  weeks  of  Easter,  to  answer  the  aforesaid  William  of  the  plea 
[and  bill]  aforesaid;  and  have  you  there  then  this  writ.  Witness,  Sir  Dudley 
Ryder,  Knight,  at  Westminster,  the  eighteenth  day  of  April,  in  the  twenty- 
eighth  year  of  our  reign. 

[Sheriff's  return.  Cepi  corpus]  By  virtue  of  this  writ  to  me  directed,  I  have 
taken  the  body  of  the  within  named  Charles  Long;  which  I  have  ready  at  the 
day  and  place  within  contained,  according  as  by  this  writ  it  is  commanded  me. 


Sect.  4.     yVrit  of  Quo  Minus  in  the  Exchequer. 

George  the  Second,  by  the  grace  of  God,  of  Great  Britain,  France,  and  Ire- 
land King,  Defender  of  the  Faith,  and  so  forth;  to  the  Sheriff  of  Berkshire, 
greeting.  We  command  you,  that  you  omit  not  by  reason  of  any  liberty  of 
your  county,  but  that  you  enter  the  same,  and  take  Charles  Long,  late  of 
Burford,  in  the  county  of  Oxford,  Gentleman,  wheresoever  he  shall  be  found  in 
your  bailiwick,  and  him  safely  keep,  so  that  you  may  have  his  body  before  the 
Barons  of  our  Exchequer  at  Westminster,  on  the  morrow  of  the  Holy  Trinity, 
to  answer  William  Burton,  our  debtor  of  a  plea,  that  he  render  to  him  two 
Imndred  pounds  which  he  owes  him  and  unjustly  detains,  whereby  he  is  the 
less  able  to  satisfy  us  the  debts  which  he  owes  us  at  our  said  Exchequer,  as  he 
saith  he  can  reasonably  show  that  the  same  he  ought  to  render:  and  have 
you  there  this  writ.  Witness,  Sir  Thomas  Parker,  Knight,  at  Westminster, 
the  sixth  day  of  May,  in  the  twenty-eighth  year  of  our  reign. 

[Sheriff's  return.  Cepi  corpus]  By  virtue  of  this  writ  to  me  directed,  I  have 
taken  the  body  of  the  within  named  Charles  Long;  which  I  have  ready  before 
the  barons  within  written,  according  as  within  it  is  commanded  me. 


Sect.   5.     Special   Bail,   on   Phe   Arrest   of   the   Defendant,   pursuant    to   the 
Testatum  Capias,  in  page  xiv. 

[Bail  bond  to  the  sheriff]  Know  all  Men  by  these  presents,  that  we  Charles 
Long,  of  Burford,  in  the  county  of  Oxford,  Gentleman,  Peter  Hamond,  of  Bix, 
in  the  said  county.  Yeoman,  and  Edward  Thomlinson,  of  Woodstock,  in  the 
said  coimty,  innholder,  are  held  and  firmly  bound  to  Christopher  Jones,  Esquire, 
Sheriff  of  the  County  of  Berks,  in  four  hundred  pounds  of  lawful  money  of 
Great  Britain,  to  be  paid  to  tlie  said  sheriff,  or  his  certain  attorney,  executors, 
administrators,  or  assigns;  for  which  payment  well  and  truly  to  be  made,  we 
bind  ourselves  and  each  of  us  by  himself  [*xx]  *for  the  whole  and  in  gross,  our 
and  every  of  our  heirs,  executors,  and  administrators,  firmly  by  these  presents, 
sealed  with  our  seals.  Dated  the  fifteenth  day  of  May,  in  the  twenty-eighth 
year  of  the  reign  of  our  sovereign  Lord  George  the  Second,  by  the  grace  of 
God,  King  of  Great  Britain,  France,  a;nd  Ireland,  Defender  of  the  Faith,  and 
so  forth,  and  in  the  year  of  our  Lord  one  thousand  seven  hundred  and  fifty- 
five. 

[Condition]  The  condition  of  this  obligation  is  such,  that  if  the  above 
bounden  Charles  Long  do  appear  before  the  justices  of  our  sovereign  Lord  the 
King,  at  Westminster,  on  the  morrow  of  the  Holy  Trinity,  to  answer  William 


Appendix  to  Book  III.  820 

Burton,  Gentleman,  of  a  plea  of  debt  of  two  hundred  pounds,  then  this  obliga- 
tion shall  be  void  and  of  none  effect,  or  else  shall  be  and  remain  in  full  force 
and  virtue. 

Sealed  and  delivered,  being  first  Chables  LoNa.  (L.  S.) 

duly  stamped,  in  the  presence  Peter  Hamond.  (L. S.) 

of  Edward  Thomlinson.     (L.  S.) 

Henry  Shaw. 
Timothy  Griffith 

[Recognizance  of  bail  before  the  commission]  You  Charles  Long  do  acknowl- 
edge to  owe  unto  the  plaintiff  four  hundred  pounds,  and  you  John  Rose  and 
Peter  Hammond  do  severally  acknowledge  to  owe  unto  the  same  person  the 
sum  of  two  hundred  pounds  a  piece,  to  be  levied  upon  your  several  goods  and 
chattels,  lands  and  tenements,  upon  condition  that,  if  the  defendant  be  con- 
demned in  the  action,  he  shall  pay  the  condemnation,  or  render  himself  a 
prisoner  in  the  Fleet  for  the  same;  and,  if  he  fail  so  to  do,  you  John  Rose  and 
Peter  Hammond  do  undertake  to  do  It  for  him. 

Trinity  Term,  28  Geo.  II. 

[Bail  piece.] 

Berks,  (  On  a  Testatum  Capias  from  Oxfordshire  against  Charles  Long,  late 
to  wit.  }  of  Burford  in  the  county  of  Oxford,  Gentleman,  returnable  on  the 
morrow  of  the  Holy  Trinity,  at  the  suit  of  William  Burton,  of  a  plea  of  debt 
of  two  hundred  pounds: 

The  bail  are,  John  Rose,  of  Witney,  in  the  county  of  Oxford,  Esquire^ 
Peter  Hariiond  of  Bix,  in  the  said  county,  yeoman. 

Richard  Price,  attorney    ) 
for  the  defendant,  S 

The  party  himself  in  4001. 
Each  of  the  bail  in  2001. 
Taken  and  acknowledged  the  twenty-eighth  day 
of  May,  in  the  year  of  our  Lord  one  thou- 
sand  seven   hundred   and  fifty -five,   de   bene 
esse,  before  me, 

Robert  Grove, 
one  of  the  commissioners. 

[*xxi]  *Sect.  6.     The  Record,  as  removed  by  Writ  of  Error. 

[Writ  of  error]  The  Lord  the  King  hath  given  in  charge  to  his  trusty  and 
beloved  Sir  John  Willes,  Knight,  his  writ  closed  in  these  words: — GEORGE 
the  Second,  by  the  grace  of  God,  of  Great  Britain.  France,  and  Ireland  King, 
Defender  of  the  Faith,  and  so  forth ;  to  our  trusty  and  beloved  Sir  John  Willes, 
Knight,  greeting.  Because  in  the  record  and  process,  and  also  in  the  giving 
of  judgment  of  the  plaint,  which  was  in  our  Court  before  you  and  your  fellows, 
our  justices  of  the  bench,  by  our  writ,  between  W^illiam  Burton.  Gentleman, 
and  Charles  Long,  late  of  Burford  in  the  county  of  Oxford,  Gentlemen,  of  a 
certain  debt  of  two  hundred  pounds,  which  the  said  William  demands  of  the 
said  Charles,  manifest  error  hath  intervened,  to  the  great  damage  of  him  the 
said  William,  as  we  from  his  complaint  are  informed;  we  being  willing  that 
the  error,  if  any  there  be,  slibuld  be  corrected  in  due  manner,  and  that  full 
and  speedy  justice  should  be  done  to  the  parties  aforesaid  in  this  behalf,  do 
command  you,  that  if  judgment  thereof  be  given,  then  under  your  seal  you 
do  distinctly  and  openly  send  the  record  and  process  of  the  plaint  aforesaid, 
with  all  things  concerning  them,  and  this  writ;   so  that  we  may  have  them 


830  Appendix  to  Book  III. 

from  the  day  of  Easter  in  fifteen  days,  wheresoever  we  shall  then  be  in  Eng- 
land; that  the  record  and  process  aforesaid  being  inspected,  we  may  cause  to 
be  done  thereupon  for  correcting  that  error,  what  of  right  and  according  to 
the  law  and  custom  of  our  realm  of  England  ought  to  be  done.  Witness 
ourselves  at  Westminster,  the  twelfth  day  of  February,  in  the  twenty-ninth 
year  of  our  reign. 

[Chief  justice's  return]     The  record  and  process  whereof  in  the  said  writ 
mention  above  is  made,  follow  in  these  words  to  wit: — 

[The  record]  Pleas  at  Westminster  before  Sir  John  Willes,  Knight,  and  his 
brethern,  justices  of  the  bench  of  the  Lord  the  King  at  Westminster,  of 
the  terra  of  the  Holy  Trinity,  in  the  twenty-eighth  year  of  the  reign  of 
the  Lord  George  the  Second,  by  grace  of  God,  of  Great  Britain,  France, 
and  Ireland  King,  Defender  of  the  Faith,  &c. 

[Writ]  Oxon,  (  Charles  Long,  late  of  Burford  in  the  county  aforesaid, 
to  wit.  \  Gentleman,  was  summoned  to  answer  William  Burton,  of 
Yarnton  in  the  said  county,  Gentleman,  of  a  plea  that  he  render  unto  him 
two  htmdred  pounds,  which  he  owes  him  and  unjustly  detains,  [as  he  saith.] 
[Declaration,  or  count,  on  a  bond.]  And  whereupon  the  said  William,  by 
Thomas  Gough,  his  attorney,  complains,  that  whereas  on  the  first  day  of  De- 
cember, in  the  year  of  our  Lord  [*xxii]  *one  thousand  seven  hundred  and  fifty- 
four,  at  Banbury  in  this  county,  the  said  Charles  by  his  writing  obligatory 
did  acknowledge  himself  to  be  bound  to  the  said  William  in  the  said  sum  of 
two.  hundred  pounds  of  lawful  money  of  Great  Britain,  to  be  paid  to  the  said 
William,  whenever  after  the  said  Charles  should  be  thereto  required;  never- 
theless the  said  Charles  (although  often  required)  hath  not  paid  to  the  said 
William  the  said  sum  of  two  hundred  pounds,  nor  any  part  thereof,  but 
hitherto  altogether  hath  refused,  and  doth  still  refuse  to  render  the  same; 
wherefore  he  saith  that  he  is  injured,  and  hath  damage  to  the  value  of  ten 
pounds:  and  thereupon  he  brings  suit,  [and  good  proof.]  [Profert  in  curia.] 
And  he  brings  here  into  Court  the  writing  obligatory  aforesaid;  which  testifies 
the  debt  aforesaid  in  form  aforesaid;  the  date  whereof 'is  the  day  and  year 
before  mentioned.  [Defence]  And  the  aforesaid  Charles,  by  Richard  Price 
his  attorney,  comes  and  defends  the  force  and  injury  when  [and  where  it  shall 
behove  him,]  and  craves  oyer  of  the  said  writing  obligatory,  and  it  is  read 
unto  him  [in  the  form  aforesaid:]  [Oyer  prayed  of  the  bond  and  condition, 
viz.,  to  perform  an  award]  he  likewise  craves  oyer  of  the  condition  of  the  said 
writing,  and  it  is  read  unto  him  in  these  words: — "The  condition  of  this  obli- 
gation is  such,  that  if  the  above  bounden  Cliarles  Long,  his  heirs,  executors, 
and  administrators,  and  every  of  them,  shall  and  do  from  time  to  time,  and 
at  all  times  hereafter,  well  and  truly  stand  to,  obey,  observe,  fulfil,  and  keep, 
the  award,  arbitrament,  order,  rule,  judgment,  final  end,'  and  determination, 
of  David  Stiles,  of  Woodstock,  in  the  said  county,  clerk,  and  Henry  Bacon,  of 
Woodstock  aforesaid.  Gentleman,  (arbitrators  indifferently  nominated  and 
cliosen  by  and  between  the  said  Charles  Long  and  the  above-named  William 
Burton,  to  arbitrate,  award,  order,  rule,  judge,  and  determine,  of  all  and  all 
manner  of  actions,  cause  or  causes  of  action,  suits,  plaints,  debts,  duties,  reck- 
onings, accounts,  controversies,  trespasses,  and  demands  whatsoever  had, 
moved,  or  depending,  or  which  might  have  been  had,  moved,  or  depending,  by 
and  between  the  parties,  for  any  matter,  cause,  or  thing,  from  the  beginning 
of  the  world  until  the  day  of  the  date  hereof,)  which  the  said  arbitrators  shall 
make  and  publish,  of  or  in  the  premises,  in  writing  under  their  hands  and 
seals,  or  otherwise  by  word  of  mouth,  in  the  presence  of  two  credible  witnesses, 
on  or  before  the  first  day  of  January  next  ensuing  the  date  hereof;  then  this 
obligation  to  be  void  and  of  none  effect,  or  else  to  be  and  remain  in  full  force 
and  virtue."  [Imparlance]  Which  being  read  and  heard,  the  said  Charles 
prays  leave  to  imparl  therein  here  until  the  octave  of  the  Holy  Trinity;  and 
it  is  granted  unto  him.   [Continuance]     The  same  day  is  given  to  the  said 


Appendix  to  Book  III.  831 

William  Burton,  here,  &e.  At  which  day,  to  wit,  on  the  octave  of  the  Holy- 
Trinity,  here  come  as  well  the  said  William  Burton  as  the  said  Charles  Long, 
by  their  attorneys  aforesaid:  and  hereupon  the  said  William  [*xxiii]  "prays 
that  the  said  Charles  may  answer  to  his  writ  and  count  aforesaid.  [Plea;  No 
such  award]  And  the  aforesaid  Charles  defends  the  force  and  injury,  when, 
&c.  and  saith,  that  the  said  William  ought  not  to  have  or  maintain  his  said 
action  against  him;  because  he  saith,  that  the  said  David  Stiles  and  Henry 
Bacon,  the  arbitrators  beforenamed  in  the  said  condition,  did  not  make  any 
such  award,  arbitrament,  order,  rule,  judgment,  final  end,  or  determination,  of 
or  in  the  premises  above  specified  in  the  said  condition,  on  or  before  the  first 
day  of  January,  in  the  condition  aforesaid  above  mentioned,  according  to  the 
form  and  eflfect  of  the  said  condition:  and  this  he  is  ready  to  verify.  Where- 
fore he  prays  judgment,  whether  the  said  William  ought  to  have  or  maintain 
his  said  action  thereof  against  him  [and  that  he  may  go  thereof  without  a 
day.]  [Replication,  setting  forth  an  award]  And  the  aforesaid  William  saith, 
that  for  any  thing  above  alleged  by  the  said  Charles  in  pleadings,  he  ought 
not  to  be  precluded  from  having  his  said  action  thereof  against  him;  because 
he  saith,  that  after  the  making  of  the  said  writing  obligatory,  and  before  the 
said  first  day  of  January,  to  wit,  on  the  twenty-sixth  day  of  December,  in  the 
year  aforesaid,  at  Banbury  aforesaid,  in  the  presence  of  two  credible  witnesses, 
namely,  John  Dew,  of  Chalbury,  in  the  county  aforesaid,  and  Richard  Morris, 
of  Wytham,  in  the  county  of  Berks,  tlie  said  arbitrators  undertook  the  charge 
of  the  award,  arbitrament,  order,  rule,  judgment,  final  end,  and  determination 
aforesaid,  of  and  in  the  premises  specified  in  the  condition  aforesaid;  and  then 
and  there  made  and  published  their  award  by  word  of  mouth  in  manner  and 
form  following,  that  is  to  say,  the  said  arbitrators  did  award,  order,  and  ad- 
judge, that  he  the  said  Charles  Long  should  forthwith  pay  to  the  said  William 
Burton  the  sum  of  seventy-five  pounds,  and  that  thereupon  all  diff"erence» 
between  them  at  the  time  of  the  making  the  said  writing  obligatory  should 
finally  cease  and  determine.  And  the  said  William  further  saith,  that  although 
he  afterwards,  to  wit,  on  the  sixth  day  of  January,  in  the  year  of  our  Lord 
one  thousand  seven  hundred  and  fifty-five,  at  Banbury  aforesaid,  requested  the 
said  Charles  to  pay  to  him  the  said  William  the  said  seventy-five  pounds,  yet 
[Protestando]  (by  protestation  that  the  said  Charles  hath  not  stood  to, 
obeyed,  observed,  fulfilled,  or  kept  any  part  of  the  said  award,  which  by  him 
the  said  Charles  ought  to  have  been  stood  to,  obeyed,  observed,  fulfilled,  and 
kept,)  for  further  plea  therein  he  saith,  that  the  said  Charles  tlie  said  seventy- 
five  pounds  to  the  said  William  hath  not  hitherto  paid;  and  this  he  is  ready  to 
verify.  Wherefore  he  prays  judgment,  and  his  debt  aforesaid,  together  with 
his  damages  occasioned  by  the  detention  of  the  said  debt,  to  be  adjudged  unto 
him,  &c.  [Demurrer]  And  the  aforesaid  Charles  saith,  that  the  plea  aforesaid, 
by  him  the  said  William  in  manner  and  form  aforesaid  above  in  his  replication 
pleaded,  and  the  matter  in  the  same  contained,  are  in  no  wise  sufficient  in 
[*xxiv]  *law  for  the  said  William  to  have  or  maintain  his  action  aforesaid  there- 
upon against  him  the  said  Charles  j  to  which  the  said  Charles  hath  no  neces- 
sity, neither  is  he  obliged  by  the  law  of  the  land,  in  any  manner  to  answer; 
and  this  he  is  ready  to  verify.  Wherefore,  for  Avant  of  a  sufficient  replication 
in  this  behalf,  the  said  Charles,  as  aforesaid,  prays  judgment,  and  that  the 
aforesaid  William  may  be  precluded  from  having  his  action  aforesaid  there- 
upon against  him,  &c.  [Causes  of  demurrer]  And  the  said  Charles,  according 
to  the  form  of  the  statute  in  that  case  made  and  provided,  shows  to  the  court 
here  the  causes  of  demurrer  following:  to  wit,  that  it  doth  not  appear,  by  the 
replication  aforesaid,  that  the  said  arbitrators  made  the  same  award  in  the 
presence  of  two  credible  witnesses  on  or  before  the  said  first  day  of  January, 
as  they  ought  to  have  done,  according  to  the  form  and  effect  of  the  condition 
aforesaid;  and  that  the  replication  aforesaid  is  uncertain,  insufficient,  and 
wants  form.  [Joinder  in  demurrer.]  And  the  aforesaid  William  saith,  that 
the  plea  aforesaid  by  him  the  said  William  in  manner  and  form  aforesaid 
above  in  his  replication  pleaded,  and  the  matter  in  the  same  contained,  are 


8''^2  Appendix  to  Book  HI. 

good  and  siifFicient  in  law  for  tlie  said  William  to  have  and  maintain  the  sai4 
action  of  him  the  said  William  thereupon  against  the  said  Charles;  which  said 
plea,  and  the  matter  therein  contained,  the  said  William  is  ready  to  verify 
and  prove  as  the  court  shall  award:  and  because  the  aforesaid  Charles  hath 
not  answered  to  that  plea,  nor  hath  he  hitherto  in  any  manner  denied  the 
same,  the  said  William  as  before  prays  judgment,  and  his  debt  aforesaid, 
together  with  his  damages  occasioned  by  the  detention  of  that  debt,  to  be 
adjudged  unto  him,  &c.  [Continuances]  And  because  the  justices  here  will 
advise  themselves  of  and  upon  the  premises  before  they  give  judgment  there- 
upon, a  day  is  thereupon  given  to  the  parties  aforesaid  here,  until  the  Morrow 
of  All  Souls,  to  hear  their  judgment  thereupon,  for  that  the  said  justices  here 
are  not  yet  advised  thereof.  At  which  day  here  come  as  well  the  said  Charles 
as  the  said  William,  by  their  said  attorneys;  and  because  the  said  justices 
here  will  farther  advise  themselves  of  and  upon  the  premises  before  they  give 
judgment  thereupon,  a  day  is  farther  given  to  the  parties  aforesaid  here  until 
the  octave  of  Saint  Hilary,  to  hear  their  judgment  thereupon,  for  that  the  said 
justices  here  are  not  yet  advised  thereof.  At  which  day  here  come  as  well  the 
said  William  Burton  as  the  said  Charles  Long,  by  their  said  attornies.  [Opinion 
of  the  court]  Wherefore,  the  record  and  matters  aforesaid  having  been  seen, 
and  by  the  justices  here  fully  understood,  and  all  and  singular  the  premises 
being  examined,  and  mature  deliberation  being  had  thereupon;  for  that  it 
seems  to  the  said  justices  here,  [Replication  insufScient]  that  the  said  plea  of 
the  said  William  Burton  before  in  his  replication  pleaded,  and  the  matter 
therein  contained,  are  not  sufficient  in  law,  to  have  and  maintain  the  action  of 
the  aforesaid  William  against  the  aforesaid  Charles;  [Judgment  for  the  de- 
fendant. Querens  nihil  capiat  per  breve]  therefore  it  is  considered,  that 
the  aforesaid  William  [*xxv]  *take  nothing  by  his  writ  aforesaid,  [Amercement. 
Costs]  but  that  he  and  his  pledges  of  prosecuting,  to  wit,  John  Doe  and 
Richard  Roe,  be  in  mercy  for  his  false  complaint;  and  that  the  aforesaid 
Charles  go  thereof  without  a  day,  &c.  And  it  is  farther  considered,  that 
the  aforesaid  Charles  do  recover  against  the  aforesaid  William  eleven  pounds 
and  seven  shillings,  for  his  costs  and  charges  by  him  about  his  defence  in 
this  behalf  sustained,  adjudged  by  the  court  here  to  the  said  Charles  with  his 
consent,  according  to  the  form  of  the  statute  in  that  case  made  and  provided: 
[Execution]  and  that  the  aforesaid  Charles  may  have  execution  thereof,  &c. 

[General  error  assigned]  Afterwards,  to  wit,  on  Wednesday  next  after 
fifteen  days  of  Easter  in  'this  same  term  before  the  Lord  the  King,  at  West- 
minster, comes  the  aforesaid  William  Burton,  by  Peter  Manwaring,  his  at- 
torney, and  saith,  that  in  the  record  and  process  aforesaid,  and  also  in  the 
giving  of  the  judgment  in  the  plaint  aforesaid,  it  is  manifestly  erred  in  this; 
to  wit,  that  the  judgment  aforesaid  was  given  in  form  aforesaid  for  the  said 
Charles  Long  against  the  aforesaid  William  Burton,  where  by  the  law  of  the 
land  judgment  should  have  been  given  for  the  said  William  Burton  against  the 
said  Charles  Long;  and  this  he  is  ready  to  verify.  [Writ  of  scire  facias,  to  hear 
errors]  And  the  said  William  prays  the  writ  of  the  said  Lord  the  King,  to 
warn  the  said  Charles  Long  to  be  before  the  said  Lord  the  King,  to  hear  tlie 
record  and  process  aforesaid;  and  it  is  granted  unto  him;  by  which  the  sheriff 
aforesaid  is  commanded  that  by  good  [and  lawful  men  of  his  bailiwick]  he 
cause  the  aforesaid  Charles  Long  to  know,  that  he  be  before  the  Lord  the  King 
from  the  day  of  Easter  in  five  weeks,  wheresoever  [he  shall  then  be  in  Eng- 
land,] to  hear  the  record  and  process  aforesaid,  if  [it  shall  have  happened  that 
in  the  same  any  error  shall  have  intervened;]  and  farther  [to  do  and  receive 
wliat  the  court  of  the  Lord  the  King  shall  consider  in  this  behalf.]  The  same 
day  is  given  to  the  aforesaid  William  Burton.  At  which  day  before  tlie  Lord 
the  King  at  Westminster,  comes  the  aforesaid  William  Burton,  by  his  attorney 
aforesaid;  [Sheriff's  return;  Scire  feci]  and  the  sheriff  returns,  that  by  virtue 
of  the  writ  aforesaid  to  him  directed,  he  had  caused  the  said  Charles  Long  to 
know,  that  he  be  before  the  Lord  the  King  at  the  time  aforesaid  in  the  said 


Appendix  to  Book  III.  833 

writ  contained,  by  John  Den  and  Richard  Fen,  good,  &c.,  as  by  the  same  writ 
was  commanded  him;  which  said  Charles  Long,  according  to  the  warning  given 
him  in  tliis  behalf,  here  cometh  by  Thomas  Webb,  his  attorney.  [Error  as 
signed  afresh]  Whereupon  the  said  William  saith,  that  in  the  record  and 
process  aforesaid,  and  also  in  the  giving  of  the  judgment  aforesaid,  it  is  mani- 
festly erred,  alleging  the  error  aforesaid  by  him  in  the  form  aforesaid  alleged, 
and  prays,  that  the  judgment  aforesaid  for  the  error  aforesaid,  and  others,  in 
the  record  and  process  aforesaid  being,  may  be  reversed,  annulled,  and  entirely 
for  nothing  esteemed,  and  that  the  said  Charles  [*xxvi]  *may  rejoin  to  the 
errors  aforesaid,  and  that  the  court  of  the  said  Lord  the  King  here  may  pro- 
ceed to  the  examination  as  well  of  the  record  and  process  aforesaid,  as  of  the 
matter  aforesaid  above  for  error  assigned.  [Rejoinder;  In  nuUo  est  erratum] 
And  the  said  Charles  saith,  that  neither"  in  the  record  and  process  aforesaid, 
nor  in  the  giving  of  the  judgment  aforesaid,  in  any  thing  is  there  erred;  and 
he  prays  in  like  manner  that  the  court  of  the  said  Lord  the  King  here  may 
proceed  to  the  examination  as  well  of  the  record  and  process  aforesaid,  as  of 
the  matters  aforesaid  above  for  error  assigned.  [Continuance]  And  becau.sb 
the  court  of  the  Lord  the  King  here  is  not  yet  advised  what  judgment  to  give 
of  and  upon  the  premises,  a  day  is  thereof  given  to  the  parties  aforesaid  until 
the  morrow  of  the  Holy  Trinity,  before  the  Lord  the  King,  wheresoever  he 
shall  then  be  in  England,  to  hear  their  judgment  of  and  upon  the  premises, 
for  that  the  court  of  the  Lord  the  King  here  is  not  yet  advised  thereof.  At 
which  day  before  the  Lord  the  King,  at  Westminster,  come  the  parties  afore- 
said by  their  attornies  aforesaid:  [Opinion  of  the  court]  Whereupon,  as  well 
the  record  and  process  aforesaid,  and  the  judgment  thereupon  given,  as  the 
matters  aforesaid  by  the  said  William  above  for  error  assigned,  being  seen, 
and  by  the  court  of  the  Lord  the  King  here  being  fully  understood,  and  mature 
deliberation  being  thereupon  had,  for  that  it  appears  to  the  court  of  the  Lord 
the  King  here,  that  in  the  record  and  process  aforesaid,  and  also  in  the  giving 
of  the  judgment  aforesaid,  it  is  manifestly  erred.  [Judgment  of  the  Common 
Pleas  reversed.  Judgment  for  the  Plaintiff.  Costs.  Defendant  amerced] 
therefore  it  is  considered,  that  the  judgment  aforesaid,  for  the  error  afore- 
said, and  others,  in  the  record  and  process  aforesaid,  be  reversed,  annulled,  and 
entirely  for  nothing  esteemed;  and  that  the  aforesaid  William  recover  against 
the  aforesaid  Charles  his  debt  aforesaid,  and  also  fifty  pounds  for  his  damages 
which  he  hath  sustained,  as  well  on  occasion  of  the  detention  of  the  said  debt, 
as  for  his  costs  and  charges  unto  which  he  hath  been  put  about  his  suit  in  this 
behalf,  to  the  said  William  with  his  consent  by  the  court  of  the  Lord  the  King 
here  adjudged.     And  the  said  Charles  in  mercy. 

Sect.  7.    Process  of  Execution. 

[Writ  of  capias  ad  satisfaciendum]  George  the  Second,  by  the  grace  of 
God,  of  Great  Britain,  France,  and  Ireland  King,  Defender  of  the  Faith,  and 
so  forth,  to  the  Sheriff  of  Oxfordshire  greeting.  We  command  you,  that  you 
take  Charles  Long,  late  of  Burford,  gentleman,  if  he  may  be  found  in  your 
bailiwick,  and  him  safely  keep,  so  that  you  may  have  his  body  before  us  in 
three  weeks  from  the  day  of  the  Holy  Trinity,  wlieresoever  we  shall  then  be 
in  England,  to  satisfy  William  Burton,  for  two  hundred  pounds  debt,  which 
the  said  William  Burton  hath  lately  recovered  against  him  in  our  court  before 
us,  and  also  fifty  pounds,  which  were  [*xxvii]  'adjudged  in  our  said  court  before 
us  to  the  said  William  Burton,  for  his  damages  which  he  hath  sustained,  as  well 
by  occasion  of  the  detention  of  the  said  debt,  as  for  his  costs  and  charges  to 
which  he  hath  been  put  about  his  suit  in  this  behalf,  whereof  the  said  Cliarles 
Long  is  convicted,  as  it  appears  to  us  of  record ;  and  have  you  there  then  this 
writ.  Witness,  Sir  Thomas  Denison,t  Knight,  at  Westminster,  the  nineteenth 
day  of  June,  in  the  twenty-ninth  year  of  our  reign. 


tThe   senior   puisne   justice;    there  being  no  chief  justice  that  term- 


834  Appendix  to  Book  III. 

[Sheriff's  return;  Cepi  Corpus]  By  virtue  of  this  writ  to  me  directed,  I  have 
taken  the  body  of  the  within  named  Charles  Long;  which  I  have  ready  before 
the  Lord  the  King  at  Westminster,  at  the  day  within  written,  as  within  it  is 
commanded  me. 

[Writ  of  Fieri  facias]  George  the  Second,  by  the  grace  of  God,  of  Great 
Britain,  France,  and  Ireland  King,  Defender  of  the  Faith,  and  so  forth,  to  the 
filieriff  of  Oxfordshire  greeting.  We  command  you  that  of  the  goods  and 
chattels  within  your  bailiwick  of  Charles  Long,  late  of  Burford,  gentleman, 
you  cause  to  be  made  two  hundred  pounds  debt,  which  William  Burton  lately 
in  our  court  before  us  at  Westminster  hath  recovered  against  him,  and  also 
fifty  pounds,  which  were  adjudged  in  our  court  before  us  to  the  said  William, 
for  his  damages  which  he  hath  sustained,  as  well  by  occasion  of  the  detention 
of  his  said  debt,  as  for  his  costs  and  charges  to  which  he  hath  been  put  about 
his  suit  in  this  behalf,  whereof  the  said  Charles  Long  is  convicted,  as  it  appears 
to  us  of  record;  and  have  that  money  before  us  in  three  weeks  from  the  day 
of  the  Holy  Trinity,  wheresoever  we  shall  then  be  in  England,  to  render  to 
the  said  William  of  his  debt  and  damages  aforesaid;  and  have  there  then  this 
writ.  Witness,  Sir  Thomas  Denison,  Knight,  at  Westminster,  the  nineteenth 
day  of  June,  in  the  twenty-ninth  year  of  our  reign. 

[Sheriff's  return;  Fieri  feci]  By  virtue  of  this  writ  to  me  directed,  I  have 
caused  to  be  made  of  the  goods  and  chattels  of  the  within  written  Charles 
Long,  two  hundred  and  fifty  pounds;  which  I  have  ready  before  the  Lord  the 
King  at  Westminster,  at  the  day  within  written,  as/it  is  within  commanded 
me. 


APPENDIX  TO  BOOK  IV. 


Sect.  1,     Recobd  of  an  Indictment  and  Conviction  of  Murdeb,  at  tiid 

Assizes. 

Warwickshire,  >  [Session  of  oyer  and  terminer]  Be  it  remembebed,  that  at 
to  wit,  >  the  general  session  of  the  lord  the  king  of  oyer  and  terminer 
holden  at  Warwick  in  and  for  the  said  county  of  Warwick,  on  Friday  the 
twelfth  day  of  March  in  the  second  year  of  the  reign  of  the  lord  George  the 
third,  now  king  of  Great  Britain,  before  sir  Michael  Foster,  knight,  one  of  the 
justices  of  the  said  lord  the  king  assigned  to  hold  pleas  before  the  king  himself, 
sir  Edward  Clive,  knight,  one  of  the  justices  of  the  said  lord  the  king,  of  hia 
<;ourt  of  Common  Bench,  and  others  their  fellows,  [Commission  of  oyer  and 
terminer,  and  of  the  peace]  justices  of  the  said  lord  the  king,  assigned  by 
letters  patent  of  the  said  lord  the  king,  under  his  great  seal  of  Great  Britain, 
made  to  them  the  aforesaid  justices  and  others,  and  any  two  or  more  of  them, 
(whereof  one  of  them  the  said  sir  Michael  Foster  and  sir  Edward  Clive,  the 
said  lord  the  king  would  have  to  be  one)  to  inquire  (by  the  oath  of  good  and 
lawful  men  of  the  county  aforesaid,  by  whom  the  truth  of  the  matter  might 
be  the  better  known,  and  by  other  ways,  methods,  and  means,  whereby  they 
could  or  might  the  better  know,  as  well  within  liberties  as  without  (more 
fully  the  truth  of  all  treasons,  misprisions  of  treasons,  insurrections,  rebellions, 
■counterfeitings,  clippings,  washings,  false  coinings,  and  other  falsities  of  the 
monies  of  Great  Britain,  and  of  other  kingdoms  or  dominions  whatsoever; 
and  of  all  murders,  felonies,  manslaughters,  killings,  burglaries,  rapes  of 
women,  unlawful  meetings  and  conventicles,  unlawful  uttering  of  words,  un- 
lawful assemblies,  misprisions,  confederacies,  false  allegations,  trespasses,  riots, 
routs,  retentions,  escapes,  contempts,  falsities,  negligences,  concealments,  main- 
tenancees,  oppressions,  champarties,  deceits,  and  all  other  misdeeds,  offences, 
and  injuries  whatsoever,  and  also  the  accessaries  of  the  same,  within  the  county 
aforesaid,  as  well  within  liberties  as  without,  by  whomsoever  and  howsoever 
done,  had,  perpetrated,  and  committed,  and  by  whom,  to  whom,  when,  how, 
and  in  what  manner;  and  of  all  other  articles  and  circumstances  in  the  said 
letters  patent  of  the  said  lord  the  king  specified;  the  premises  and  every  or 
any  of  them  howsoever  concerning;  and  for  this  time  to  hear  and  determine 
the  said  treasons  and  other  the  premises,  according  to  the  law  and  custom  of 
the  realm  of  England;  and  also  keepers  of  the  peace,  and  justices  of  the  said 
lord  the  king,  assigned  to  hear  and  determine  divers  felonies,  trespasses,  and 
other  misdemeanors  committed  within  the  county  aforesaid,  by  the  oath  of 
[Grand  jury]  sir  James  Thomson,  baronet,  Charles  Roper,  Henry  Dawes,  Peter 
Wilson,  Samuel  Rogers,  John  Dawson,  James  Phillips,  John  Mayo,  Richard 
Savage,  William  Bell,  James  Morris,  Laurence  Hall,  and  Charles  Carter, 
esquires,  good  and  lawful  men  of  the  county  aforesaid,  then  and  there  im- 
panelled, sworn,  and  charged  to  inquire  for  the  said  lord  the  king  and  for  the 
body  of  the  said  county,  it  is  presented;  [Indictment]  That  Peter  Hunt,  late 
of  the  parish  of  Lighthorne  in  the  said  county,  gentleman,  not  having  the  fear 
of  God  before  his  eyes,  but  being  moved  and  seduced  by  the  instigation  of  the 
devil,  on  the  fifth  day  of  March  in  the  said  second  year  of  the  reign  of  the  said 
lord  the  king,  at  the  parish  of  Lighthorne  aforesaid,  with  force  and  arms,  in 
and  upon  one  Samuel  Collins,  in  the  peace  of  God  and  of  the  said  lord  the  king 
then  and  there  being,  feloniously,  wilfully,  and  of  his  malice  aforethought,  did 

[835] 


636  AppENDii  TO  Book  IV. 

make  an  assault;  and  that  the  said  Peter  Hunt,  with  a  certain  drawn  sword, 
made  of  iron  and  steel,  of  the  value  of  five  shillings,  which  he  the  said  Peter 
Hunt  in  his  right  hand  then  and  there  had  and  held,  him  the  said  Samuel 
Collins,  in  and  upon  the  left  side  of  the  belly  of  him  the  said  Samuel  Collins 
then  and  there  feloniously,  wilfully,  and  of  his  malice  aforethought,  did  strike, 
thrust,  stab,  and  penetrate;  giving  unto  the  said  Samuel  Collins,  then  and 
there,  with  the  sword  drawn  as  aforesaid,  in  and  upon  the  left  side  of  the 
belly  of  him  the  said  Samuel  Collins,  one  mortal  wound  of  the  breadth  of  one 
inch,  and  the  depth  of  nine  inches;  of  which  said  mortal  wound  he  the  said 
Samuel  Collins,  at  the  parish  of  Lighthorne  aforesaid  in  the  said  county  of 
Warwick,  from  the  said  fifth  day  of  March  in  the  year  aforesaid  until  the 
seventh  day  of  the  same  month  in  the  same  year,  did  languish,  and  languishing 
did  live;  on  which  said  seventh  day  of  March  in  the  year  aforesaid,  the  said 
Samuel  Collins,  at  the  parish  of  Lighthorne  aforesaid,  in  the  county  aforesaid, 
of  the  said  mortal  wound  did  die:  and  so  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  say,  that  the  said  Peter  Hunt  him  the  said  Samuel  Collins,  in 
manner  and  form  aforesaid,  feloniously,  wilfully,  and  of  his  malice  afore- 
thought, did  kill  and  murder,  against  the  peace  of  the  said  lord  the  now  king, 
his  crown,  and  dignity.  [Capias]  Whereupon  the  sheriff  of  the  county  afore- 
said is  commanded,  that  he  omit  not  for  any  liberty  in  his  bailiwick,  but  that 
he  take  the  said  Peter  Hunt,  it  he  may  be  found  in  his  bailiwick,  and  him  safely 
keep,  to  answer  to  the  felony  and  murder  whereof  he  stands  indicted.  [Session 
of  gaol  delivery]  Which  said  indictment  the  said  justices  of  the  lord  the  king 
above  named,  afterwards,  to  wit,  at  the  delivery  of  the  goal  of  the  said  lord 
the  king,  holden  at  Warwick  in  and  for  the  county  aforesaid,  on  Friday  the 
sixth  day  of  August,  in  the  said  second  year  of  the  reign  of  the  said  lord  the 
king,  before  the  right  honourable  William  lord  Mansfield,  chief  justice  of  the 
said  lord  the  king,  assigned  to  hold  pleas  before  the  king  himself,  sir  Sidney 
Stafford  Smythe,  knight,  one  of  the  barons  of  the  exchequer  of  the  said  lord 
the  king,  and  others  their  fellows,  justices  of  the  said  lord  the  king,  assigned 
to  deliver  his  said  goal  of  the  county  aforesaid  of  the  prisoners  therein  being, 
by  their  proper  hands  do  deliver  here  in  court  of  Record  in  form  of  the  law 
to  be  determined.  [Arraignment]  And  afterwards,  to  wit,  at  the  same  de- 
livery of  the  gaol  of  the  said  lord  the  king  of  his  county  aforesaid,  on  the  said 
Friday  the  sixth  day  of  August,  in  the  said  second  year  of  the  reign  of  the 
said  lord  the  king,  before  the  said  justices  of  the  lord  the  king  last  above 
named  and  others  their  fellows  aforesaid,  here  cometh  the  said  Peter  Hunt, 
under  the  custody  of  William  Browne,  esquire,  sheriff  of  the  county  aforesaid, 
( in  whose  custody  in  the  gaol  of  the  county  aforesaid,  for  the  cause  aforesaid, 
he  had  been  before  committed,)  being  brought  to  the  bar  here  in  his  proper 
person  by  the  said  sheriff,  to  whom  he  is  here  also  committed:  [Plea:  not 
guilty]  And  forthwith  being  demanded  concerning  the  premises  in  the  said 
indictment  above  specified  and  charged  upon  him,  how  he  will  acquit  himself 
thereof,  he  saith,  that  he  is  not  guilty  thereof;  and  thereof  for  good  and  evil 
he  puts  himself  upon  the  country:  [Issue]  And  John  Blencowe,  esquire,  clerk 
of  the  assizes  for  the  county  aforesaid,  who  prosecutes  for  the  said  lord  the 
king  in  this  behalf,  doth  the  like:  [Venire]  Therefore  let  a  jury  thereupon 
here  immediately  come  before  the  said  justices  of  the  lord  the  king  last  above 
mentioned,  and  others  their  fellows  aforesaid,  of  free  and  lawful  men  of  the 
neighbourhood  of  the  said  parish  of  Lighthorne  in  the  county  of  Warwick 
aforesaid,  by  whom  the  truth  of  the  matter  may  be  the  better  known,  and  who 
are  not  of  kin  to  the  said  Peter  Hunt,  to  recognise  upon  their  oath,  whether 
the  said  Peter  Hunt  be  guilty  of  the  felony  and  murder  in  the  indictment 
aforesaid  above  specified,  or  not  guilty:  because  as  well  the  said  John  Blen- 
cowe, who  prosecutes  for  the  said  lord  the  king  in  this  behalf,  as  the  said  Peter 
Hunt,  have  put  themselves  upon  the  said  jury.  And  the  jurors  of  the  said 
jury  by  the  said  sheriff  for  this  purpose  impanelled  and  returned,  to  wit,  David 
Williams,  John  Smith,  Thomas  Home.  Charles  Nokes.  Richard  May,  Walter 
Duke,  Matthew  Lion,  James  White,  William  Bates,  Oliver  Green,  Bartholomew 


Appendix  to  Book  IV.  837 

Nash,  and  Henry  Long,  being  called,  come;  who  being  elected,  tried,  and  sworn, 
to  speak  the  truth  of  and  concerning  the  premises,  upon  their  oath  say, 
[Verdict:  guilty  of  murder]  that  the  said  Peter  Hunt  is  guilty  of  the  felony 
and  murder  aforesaid,  on  him  above  charged  in  the  form  aforesaid,  as  by  the 
indictment  aforesaid  is  above  supposed  against  him;  and  that  the  said  Peter 
Hunt  at  the  time  of  committing  the  said  felony  and  murder,  or  at  any  time 
since  to  tliis  time,  had  not  nor  hath  any  goods  or  chattels,  lands  or  tenements, 
in  the  said  county  of  Warwick,  or  elsewhere,  to  the  knowledge  of  the  said 
jurors.l  And  upon  this  it  is  forthwith  demanded  of  the  said  Peter  Hunt, 
if  he  hath  or  knovveth  any  thing  to  say,  wherefore  the  said  justices  here 
ought  not  upon  the  premises  and  verdict  aforesaid  to  proceed  to  judgment  and 
execution  against  him:  who  nothing  further  saith,  unless  as  he  before  bad 
said.  [Judgnient  of  death,  etc.]  Whereupon,  all  and  singular  the  premises 
being  seen,  and  by  the  said  justices  here  fully  understood,  it  is  considered 
by  the  court  here,  that  the  said  Peter  Hunt  be  taken  to  the  gaol  of  the  said 
lord  the  king  of  the  said  county  of  Warwick  from  whence  he  came,  and  from 
thence  to  the  place  of  execution  on  Monday  now  next  ensuing,  being  the  ninth 
day  of  this  instant  August,  and  there  be  hanged  by  the  neck  until  he  be  dead ; 
and  that  afterwards  his  body  be  dissected  and  anatomized. 

Sect.  2.     Coxvictiox  of  Manslaughter. 

[Verdict:  not  guilty  of  murder;  guilty  of  manslaughter]  upon  their 

oath  say,  that  the  said  Peter  Hunt  is  not  guilty  of  the  murder  aforesaid,  above 
charged  upon  him;  but  that  the  said  Peter  Hunt  is  guilty  of  the  falonious 
slaying  of  the  aforesaid  Samuel  Collins;  and  that  he  had  not  nor  hath  any 
goods  or  chattels,  lands  or  tenements,  at  the  time  of  the  felony  and  man- 
slaughter aforesaid,  or  ever  afterwards  to  this  time,  to  the  knowledge  of  the 
said  jurors.2  And  immediately  it  is  demanded  of  the  said  Peter  Hunt, 
if  he  hath  or  knoweth  any  thing  to  say,  wherefore  the  said  justices  here  ought 
not  upon  the  premises  and  verdict  aforesaid  to  proceed  to  judgment  and  execu- 
tion against  him:  [Clergy  prayed]  who  saith  that  he  is  a  clerk,  and  prayeth 
the  benefit  of  clergy  to  be  allowed  him  in  this  behalf  [Judgment  to  be  burned 
in  the  hand,  and  delivered]  Whereupon,  all  and  singular  the  premises  being 
seen,  and  by  the  said  justices  here  fully  understood,  it  is  considered  by  the 
court  here,  that  the  said  Peter  Hunt  be  burned  in  his  left  hand,  and  delivered. 
And  immediately  he  is  burned  in  his  left  hand,  and  is  delivered,  according  to 
the  form  of  the  statute.3 

Sect.  3.    Entry  of  a  Trial  lnstantee  in  the  Court  of  King's  Bench,  tjpon 
a  collateral  issue;  and  rule  of  court  for  execution  thereon, 

Michaelmas  Term,  in  the  Sixth  Year  of  the  Reign  of 
King  George  the  Third. 

Kent;  The  King   )     [Habeas  corpus.  Record  of  attainder  read;  of  felony  and 
against  >         robbery]    The  prisoner  at  the  bar  being  brought  into 

Thomas  Rogers.  )  this  court  in  custody  of  the  sheriff  of  the  county  of 
Sussex,  by  virtue  of  his  majesty's  writ  of  habeas  corpus,  it  is  ordered  that  the 
said  writ  and  the  return  thereto  be  filed.  And  it  appearing  by  a  certain  record 
of  attainder,  which  hath  been  removed  into  this  court  by  his  majesty's  writ  of 
certiorari,  that   the   prisoner  at   the   bar   stands   attainted,   by   the  name   of 

1  This    averment    is    now    rendered  3  Benefit  of  clergy  and  burning   in 

iinncoessary.  See  7  and  8  Geo.  IV.  the  hand  being  now  abolished,  see  6 
c.  28,  §  5;  ante,  p.  387,  n.  (7).  Geo.  IV.  c.  25,  7  and  8  Geo.  IV.  c.  28, 

^  bee  preceding  note.  ante,   p.   374.  n.    (8),  this   form   will 

require  alteration  accordingly. 


838  Appendix  to  Book  IV". 

Thomas  Rogers,  of  felony  for  a  robbery  on  the  highway,  and  the  said  pri- 
soner at  the  bar  having  heard  the  record  of  tlie  said  attainder  now  read  to 
him,  [Prisoner  asked  what  he  can  say  in  bar  of  execution]  is  now  asked  by 
the  court  here,  what  he  hath  to  say  for  himself,  why  the  court  here  should 
not  proceed  to  award  execution  against  him  upon  the  said  attainder.  [Plea; 
not  the  same  person]  He  for  plea  saith,  that  he  is  not  the  same  Thomas 
Rogers  in  the  said  record  of  attainder,  named,  and  against  whom  judgment 
was  pronounced:  and  this  he  is  ready  to  verify  and  prove,  &c.  To  which  said 
plea  tlie  honourable  Charles  Yorke,  esquire,  attorney  general  of  our  present 
sovereign  lord  the  king,  who  for  our  said  lord  the  king  in  this  behalf  prose- 
cuteth,  being  now  present  here  in  court,  and  having  heard  what  the  said 
prisoner  at  the  bar  hath  now  alleged,  for  our  said  lord  the  king  [Replication; 
averring  that  he  is]  by  way  of  reply  saith,  that  the  said  prisoner  now  here  at 
the  bar  is  the  same  Thomas  Rogers  in  the  said  record  of  attainder  named, 
and  against  whom  judgment  was  pronounced  as  aforesaid;  and  this  he  prayeth 
may  be  inquired  into  by  the  country;  [Issue  joined]  and  the  said  prisoner  at 
the  bar  doth  the  like:  [Venire  awarded  inatanter]  Thkrefore  let  a  jury  in 
this  behalf  immediately  come  here  into  court,  by  whom  the  truth  of  the  matter 
will  be  tlie  better  known,  and  who  have  no  affinity  to  the  said  prisoner,  to  try 
upon  their  oath,  whether  the  said  prisoner  at  the  bar  be  the  same  Thomas 
Rogers  in  the  said  record  of  attainder  named,  and  against  whom  judgment  was 
so  pronounced  as  aforesaid,  or  not:  because  as  well  the  said  Charles  Yorke, 
esquire,  attorney  general  of  our  said  lord  the  king,  who  for  our  said  lord  the 
king  in  this  behalf  prosecutes,  as  the  said  prisoner  at  the  bar,  have  put  them- 
selves in  this  behalf  upon  the  said  jury.  [Jury  sworn]  And  immediately  there- 
upon the  said  jury  come  here  into  court:  and  being  elected,  tried,  and  sworn 
to  speak  the  truth  touching  and  concerning  the  premises  aforesaid,  and  having 
heard  tlie  said  record  read  to  them,  [Verdict:  that  he  is  the  same]  do  say 
upon  their  oath,  that  the  said  prisoner  at  the  bar  is  the  same  Thomas  Rogers 
in  the  said  record  of  attainder  named,  and  against  whom  judgment  was  so 
pronounced  as  aforesaid,  in  manner  and  form  as  the  said  attorney  general  hath 
by  his  said  replication  to  the  said  plea  of  the  said  prisoner  now  here  at  the 
bar  alleged.  And  hereupon  the  said  attorney  general  on  behalf  of  our  said 
lord  the  king  now  prayeth,  that  the  court  here  would  proceed  to  award  execu- 
tion against  him  the  said  Thomas  Rogers  upon  the  said  attainder.  [Award  of 
execution]  Whereupon,  all  and  singular  the  premises  being  now  seen  and 
fully  understood  by  the  court  here,  it  is  ordered  by  the  court  here,  that  execu- 
tion be  done  upon  the  said  prisoner  at  the  bar  for  the  said  felony  in  pursuance 
of  the  said  judgment,  according  to  due  form  of  law:  And  it  is  lastly  ordered, 
that  he  the  said  Thomas  Rogers,  the  prisoner  at  the  bar,  be  now  committed 
to  the  custody  of  the  sheriff  of  the  county  of  Kent  (now  also  present  here  in 
court)  for  the  purpose  aforesaid;  and  that  the  said  sheriff  of  Kent  do  execution 
upon  the  said  defendant  the  prisoner  at  the  bar  for  the  said  felony,  in  pur- 
suance of  the  said  judgment,  according  to  due  form  of  law.  On  the  motion  of 
Mr.  Attorney  General. 

By  the  Court. 

Sect.  4.    Warrant  of  Execution  on  Judgment  of  Death,  at  the  general 
Gaol  delivery  in  London  and  Middlesex. 

London  1  To  the  sheriffs  of  the  city  of  London;  and  to  the  sheriff  of  the 
and  >•  county  of  Middlesex:  and  to  the  keeper  of  his  majesty's  gaol 
Middlesex.   \        of  Newgate. 

Whereas  at  the  session  of  gaol  delivery  of  Newgate,  for  the  city  of  London 
and  county  of  Middlesex,  holden  at  Justice  Hall  in  the  Old  Bailey,  on  the 
nineteenth  day  of  October  last.  Patrick  Mahony,  Roger  Jones,  Charles  King^ 
and  Mary  Smi'th.  received  sentence  of  death  for  the  respective  offences  in  their 
several  indictments  mentioned;  Now  it  is  hereby  ordered,  that  execution  of 
the  said  sentence  be  made  and  done  upon  them  the  said  Patrick  Mahony  and 


Appendix  to  Book  IV.  839 

Koger  Jones,  on  Wednesday  the  ninth  day  of  this  instant  month  of  November 
at  the  usual  place  of  execution.  And  it  is  his  majesty's  command,  that  execu- 
tion of  the  said  sentence  upon  them  the  said  Charles  King  and  Mary  Smith  be 
respited,  iintil  his  majesty's  pleasure  touching  them  be  further  known. 

Given  under  my  hand  and  seal  this  fourth  day 
of  November,  one  thousand  seven  hundred  and 
sixty-eight. 

James  Eybe,  Recorder,  (L.  S.) 

Ssxr.  5.     Writ  of  Execution  ttpon  a  Judgme:?t  of  Mubdeb,  before  the 
King  in  Parliament. 

George  the  Second,  by  the  grace  of  God  of  Great  Britain,  France,  and  Ire- 
land, king,  defender  of  the  faith,  and  so  forth;  to  the  sheriffs  of  London  and 
sheriff  of  Middlesex,  greeting.  Whereas  Lawrence  earl  Ferrers,  viscount  Tam- 
worth,  hath  been  indicted  of  felony  and  murder  by  him  done  and  committed, 
which  said  indictment  hath  been  certified  before  us  in  our  present  parliament; 
and  the  said  Lawrence  earl  Ferrers,  viscount  Tamworth,  hath  been  thereupon 
arraigned,  and  upon  such  arraignment  hath  pleaded  not  guilty;  and  the  said 
Lawrence  earl  Ferrers,  viscount  Tamworth,  hath  before  us  in  our  parliament 
been  tried,  and  in  due  form  of  law  convicted  thereof;  and  whereas  judgment 
hath  been  given  in  our  said  parliament,  that  the  said  Lawrence  earl  Ferrers, 
viscount  Tamworth,  shall  be  hanged  by  the  neck  till  he  is  dead,  and  that  his 
body  be  dissected  and  anatomized,  the  exeecution  of  which  judgment  yet  re- 
maineth  to  be  done:  We  require,  and  by  these  presents  strictly  command  you, 
that  upon  Monday  the  fifth  day  of  May  instant,  between  the  hours  of  nine 
in  the  morning  and  one  in  the  afternoon  of  the  same  day,  him  the  said 
Ijawrence  earl  Ferrers,  viscount  Tamworth,  without  the  gate  of  our  tower  of 
London  (to  you  then  and  there  to  be  delivered,  as  by  another  writ  to  the 
lieutenant  of  our  tower  of  London  or  to  his  deputy  directed,  we  have  com- 
manded) into  your  custody  you  then  and  there  receive:  and  him,  in  your 
custody  so  being,  you  forthwith  convey  to  the  accustomed  place  of  execution 
.  at  Tyburn:  and  that  you  do  cause  execution  to  be  done  upon  the  said  Lawrence 
earl  Ferrers,  viscount  Tamworth,  in  your  custody  so  being,  in  all  things  ac- 
cording to  the  said  judgment.  And  this  you  are  by  no  means  to  omit,  at  your 
peril.  Witness  ourself  at  Westminster  the  second  day  of  May,  in  the  thirty- 
third  year  of  our  reign. 

YoBKE  and  Yobke. 


INDEX. 

{References  are  to  pages."] 


A. 

Abatement,  of  nuisance ■ 425 

ouster  by 508 

Abduction 486,  487 

Abeyance,  defined 181 

Accessaries.    See  Crimes. 

Accession,   property   by 347 

Accord,  definition  and  effect  of 432 

Actions.     See  Assumption;  Debt;  Trespass;  Trespass  in  the  Case,  etc. 

defined 409 

species  of,  and  when  they  lie 469,  497  ei  aeq. 

local   and  transitory 556 

Adjournment,    defined 47 

Administration,  Administrators,  4th  section  of  statute  of  frauds 407 

origin  and  history  of  administration 401 

administrators,  defined 403 

how  appointed 403 

kinds  of 410 

who   entitled   to   administer 404,  410 

duties  of  administrators 412 

method  of  distributing  estate 415 

Admiralty,    Courts   of 456 

jurisdiction  of 462 

procedure  in.   . 464 

criminal   jurisdiction   of 738 

Adultery,    action   for 485 

not  a  crime  at  common  law 656 

Advowson,  defined 143 

Affidavit,    defined , 564 

Affrays.     See  Crimes. 

Agency.    See  Master  and  Servant. 

Ages,  recognized  by  the  law 121 

Agistment 37!) 

Air,  right  to 143,  345 

A! ien  enemy,  seizure  of  goods  of 344 

Aliens,   defined , 82 

disabilities  of 252,  273 

[841] 


842  Index.  "1:  '^ 

[References  are  to  pages.1 

Alienation,  title  by,  defined 5*  n  f :  y«  : 274 

restrictions  upon  alienation,  removed  by  statute 27» 

who  may  alien,  and  to  whom 276 

modes  of  alienation 278  et  seq. 

alienation   by   deed    278,  271> 

record 278,  311 

special  custom 278,  321 

devise 278,  325 

Alimony,  defined 108 

suit  for 460 

Allegiance 82 

Alluvion 258 

Ambassadors,  rights,  privileges,  etc.,  of 58,  658,  65& 

children    of 86 

Amendment  608,  701 

Ancient   demesne,   defined ., 177 

Animals,  nature  of  property  in,  and  how  acquired. .  .  .143,  335,  340,  346,  727 

Annuities 153 

Appeals,   in  equity 634 

from  courts  of  law i  a  a , 607 

Appearance,  how  effected ..:....' 544 

in   person 438 

by  attorney 438 

Apprentices,   defined 98 

Approvement 705 

Arbitration,  definition  and  effect  of . . .  ^. 432 

rule  of  court 433 

Aristocracy,  defined 7 

Arms,  right  to  bear 35- 

Arraignment.     See  Crimes. 

Arrests,   defined , 540 

how  and  by  whom  made 549,  746 

who  privileged  from 55(V 

Arson.    See  Crimes. 
Assault.    See  Crimes. 

Assignment,  defined , 295 

of  chose  in  action 360 

Assise,  Courts  of.     See  Courts. 

Assumpsit,  when   it  lies 500,  503 

See  Trespass  in  the  Case. 

Attachment,  a  kind  of  process 544 

Attainder,   effect   of   253,  792 

Attorney-atlaw,  defined 438^ 

admission  of 43S 


Index.  843 

[References  are  to  pages.] 

Attorney  and  Solicitor-General 439 

Attornments ,. 275 

Audita  querela,  when  it  lies 606 

Award.     See  Arbitration    432 

B. 

Bail,  special ; 551  et  aeq. 

to  the  action 552 

in  criminal  prosecutions 749 

Bailiffs.  .  .  ■ 73 

Bailment,  defined 378 

creates  a  special  property 378 

Bankruptcy 273.  390 

Bargain  and  sale,  conveyance  by .305,  306 

Baron,  defined 91 

Barristers,   admission  of 439 

patent   of   precedence 439 

rights   and   duties   of 440 

Bastards,  defined ..*..•.. 115,  252 

duty  of  parents  to Ji'.'' 117 

rights  and  incapacities  of   «V'M h^ih'it'^ 118,  252 

Battery.    See  Crimes. 

Benefit  of  Clergy 782 

Bigamy.     See  Crimes. 

Bill  in  equity,  nature  of 623 

proceedings   upon 625 

kinds  of  bills 628 

Bill  of  exceptions .••';*.  i'i*«'.'. '.  ^iii  • 592 

Bills  of  e.xchange,  defined ..;......-. 385 

kinds  of 385 

indorsement 386,  388 

acceptance,  etc 387 

protest 387 

Blasphemy,  defined 655 

Body,  no  property  in  when  dead 356 

Bond,   defined 307 

Bond,   condition  of 308 

forfeiture  of 303 

no  consideration  necessary 372 

Borougli    English,    described 16!> 

Bottomry 382 

Bribery.     See  Crimes. 

Burgage  tenure,  described 169 

Buro;larv.     See  Crimes. 


844  Index. 

,  [References  are  to  pages.]  -      "  . 

0. 

Canon  law,  adopted  in  certain  courts 17 

consists  of  what 17 

Capiat  ad  respondendum,  commencement  of  actions  by 540 

a  kind  of  process 543 

Capias   ad   satisfaciendum 610 

Castle,  every  man's  house  his 550 

Challenges,  to  jurors 583,  774 

to  fight C8ft 

Champerty.    See  Crimes. 

Chancery,  High  Court  of.    See  Courts ;  Equity. 

Charters 358 

Chattels.     See  Personal  Property. 

defined 335 

kinds  of 333 

effect  of  marriage  on,  of  wife 302: 

Chose  in  action,  defined 341 

how  created 342 

Civil  law  (Roman) ,  adopted  in  certain  courts 17 

consists  of   what 17 

Clergy,  The.     See  Benefit  of  Clergy 81> 

Codicil,  defined 407 

Common,  right  of,  defined-,  and  kinds  of 140 

Common  carriers 378,  505 

Common  counts   503 

Common  law,  three  kinds  of 12 

Common  pleas.    See  Courts. 

Common  recovery,  origin  of 317 

defined 317 

how  levied 317 

force  and  effect  of 310 

Commonalty,  degrees  of 93 

Commons.    See  House  of  Commons. 

Commons,  rights  of 140 

Conditions. 

estates  upon 2(^8 

kinds  of 200,  308 

distinguished  from  limitation 208 

Confirmation,  deed  of,  defined 294 

Confusion  of  goods 348 

Consanguinity,  defined 104,  230 

kinds  of 230 

degrees  of,  how  computed 245' 

in  case  of  grants  of  administration 410 


Index.  845 


[References  are  to  pagea.} 


«k. 


Conservators  of  the  peace 75 

Oonsideration,  kinds  of,  defined 37I 

of  a  deed ; 372 

contract 37I 

Constable,  name,  kinds  of,  and  duty 77 

Constitution ,  34 

Construction.    See  Interpretation  and  Construction. 

rules  of 9,  329 

Contempts.     See  Crimes 743 

Continuances,  defined 572 

Contract.    See  Consideration. 

defined 369 

kinds  of ■. 370,  373 

consideration 371 

Conversion.    See  Trover. 

Coparcenary.    See  Estates  in  Coparcenary. 

Copyholds,  origin  and  description  of 171  et  seq.,  205 

incidents  of , 1 76 

Copyright 349,  352 

Cornage,  tenure  by  , 166 

Corodies 153 

Coronation  oath 54 

Coroner,  name,  power,  and  duty 73,  580 

Corporations,  defined 124 

kinds  of 124   et  seq. 

how  created 127 

powers,  rights,  capacities,  etc. « .  • 129 

visitation  of 132 

dissolution   of.   .    . 134 

no  escheat  in  case  of  lands  held  by 255 

succession   to   property   of ,. 360 

Costs,  an  incident  to  the  judgment ^ 66,  367,  605 

taxation  of 605 

in  equity .- 632 

Councils,  of  the  king 53 

Counsel 439 

Counterfeiting,  great  seal 665 

Counties 23 

Countries,  subject  to  England .  .  . . , 22 

Courts.     See  Jurisdiction. 

Courts,  defined 436  and  note 

kinds  of    436,  437 

constituent  parts  of , 437 

•        of  common  law  and  equity 441- 


S46  Index.  *  ^  -' 

[References  are  to  pages.}  ■      ' 

Courts  of  common  law  and  equity. 

pie  poudre , 441 

court  baron ' 442 

hundred  court 442 

county  court , 442 

of  Common  Pleas 442 

Exchequer 447 

Exchequer   Chamber •  454 

*.^            King's  Bench 442 

of  Chancery 449,  451 

Equity  in  Exchequer  Chamber 448 

House  of  Lords 454 

Assise   and   Nisi   Prius 454 

ecclesiastical,  military  and  maritime 456,  458,  461,  462 

of  a  special  jurisdiction 457 

criminal  jurisdiction 737 

in  the  United  States \ 455 

Covenant,  who  may  take  advantage  of , 498 

to  stand  seized ^ , 305 

Covenant,  action  of,  when  it  lies ».  . .  .  408 

Crimes  and  criminal  law;  nature  of  crimes 641 

persons  incapable  of  committing 643 

infants 643 

the  king -. 649 

insane  persons 644 

eflfect  of  intoxication 645 

accident ^il\  .i 640 

ignorance 646 

compulsion 646,  049 

principals  and  accessaries   650 

kinds  of  principals 050 

accessaries.   .   .    650 

what  offences  admit  of 650 

who  may  be  accessary  before  the  fact 65i 

after  the  fact 652 

how  treated 653 

arraignment  of 654,  763 

reasons  for  distinctions  between  principals  and  accessaries 654 

Crimes  against  God  and  religion 655  et  seq. 

apostasy,   heresy,   blasphemy 655 

common  swearing 655 

I                 witchcraft,   etc 655 

religious   impostors 655 

*  ■■  '  .       siiuony 656 


Index.  847 

[References  are  to  pages.] 

Crimes  against  God  and  religion. 

profanation  of  the  Lord's  day 656 

drunkenness.   .   656 

lewdness 656 

against  the  law  of  nations 657 

violation    of    safe-conducts 657 

rights  of  ambassadors 657 

piracy 659 

treason,   defined 661 

kinds  of ; , . , 661  et  seq. 

statute  25  Edw.  III.  c.  2, 662 

new  treasons 665 

punishment  of 666 

,      felony,  defined 667 

praemunire 669 

misprisions  and  contempts,  defined (»70 

kinds   of 670   et  seq. 

method  of  punishing 672,  673 

against  public  justice 674  et  seq. 

embezzling   or   vacating   records 674 

obstructing  process 674 

escape 674 

breach  of  prison 675 

rescue 675 

receiving  stolen  goods 676 

compounding  felony 677 

common  barratry i 677 

maintenance 677 

champerty 677 

compounding  informations  upon  penal  statutes 678 

conspiracy 678 

perjury 679 

subornation  of 680 

bribery 681 

embracery,   extortion,   etc 681 

against  the  public  peace 683  et  seq, 

riotous  assemblies 683 

C5rime8,  affrays 683 

riots,  routs,  etc 684 

tumultuous  petitioning 684 

forcible  entry  or  detainer 684 

going   armed,    etc 685 

spreading  false   news 686 

false  and  pretended  prophecies 68G 


848  Index. 

[References  are  to  pagea.]  > 

Crimes. 

cltallengea  to  fight 686 

libels , 68a 

against  public  trades  689  et  seq. 

owling 68tf 

smuggling   ; 68U 

usury 68U 

cheating 68y 

false  pretences 690 

forestalling,  regrating,  and  engrossing   691 

monopolies   and   combinations 691 

against  public  health  and  public  police. '. 693  et  seq. 

violating  quarantine 69'•^ 

selling  unwholesome  provisions    69.1 

bigamy 694 

common   nuisances 69.') 

eavesdroppers 697 

vagrancy 695 

gaming , 690 

killing  game 698 

homicide.  .  , 699  et  seq. 

defined. 69« 

kinds  of 699  et  seq, 

self  defence 701  et  seq. 

manslaughter 70.5 

suicide 705 

murder 704,  707 

malice 476,  706,  710,  712 

petit  treason 71.3 

against  the  persons  of  individuals   714 

mayhem 714 

rape 715 

crime  against  nature 716 

assault  and   battery 717 

kidnapping 717 

false   imprisonment 717 

Grimes  against  habitations  of  individuals 718 

arson 718 

burglary 7  If* 

against  private  property 724 

larceny 724 

robbery 730 

malicious  mischief 7-31 

forgery 732 

means  of  preventing  offences 733 


Index.                   -  ^   ,     , —  849 

[References  are  to  pagea.] 
Crimes. 

courts  of  criminal  jurisdiction 737  et  seq. 

summary  convictions 74I 

arrest 745 

commitment  and  bail 749 

modes  of  prosecution 753 

presentments 753 

inquisitions » 753 

indictments 754 

grand  jury 754 

informations 759 

process  upon  an  indictment 760 

arraignment, 762 

standing  mute 764 

confession 765 

approvement 765 

king's  evidence 766 

plea  and  issue , 767  et  seq. 

demurrer 767 

trial  and  conviction 772 

kinds   of   trials 772 

challenges 774 

evidence , 776,  777 

verdict 779  et  aeq. 

consequences  of  conviction   780 

benetit  of  clergy  782  et  seq. 

judgment  and  its  consequences 791 

attainder 792 

reversal  of 795 

reprieve  and  pardon.'  792,  797 

execution 801 

Curtesy,  tenancy  by,  defined 19.3 

requisites 193 

Chistom,  defined 260 

general    and,  special 12,  16 

validity  of,  determined  by  the  judges 13 

rules  relating  to 1^ 

title  by .-' 260,  357 

1*>1  p^ih 

D. 

D^mmges,  right  to,  how  acquired  and  lost 366 

in   ejectment "1* 

Day,  defined 200 

Days  of  grace '*'" 


850  Index. 

[References  are  to  pages."] 

Deaf  and  dumb  persons,  disability  of 277 

Death 30 

Debt,   defined    ^ 383,  496 

kinds   of 384 

Debt,  action  of,  when  it  lies 496,  501,  616 

Declaration.     See  Pleading. 

Decree  in  equity,  kinds  of 622,  632 

Deed.     See  Alienation. 

defined 279 

kinds  of 279 

requisites  of , 280 

parts  of  a 282,  285,  803 

how    avoided 286,  287 

Defeasance,   defined   296,  309 

Democracy,  defined 7 

Demurrer,  defined 57 1 

form   of 571 

general  and  special 571 

how  determined 573 

to  evidence  592 

in  equity.    See  Equity. 

Denizens 87 

Depositions,  in  chancery.     See  Equity. 

Descent,  title  by,  defined 239 

rules  of 240  et  seq. 

Detinue,  when  the  action  lies 494 

Devise.     See  Wills.  , 

■rtiiusMi,         

Dignities 152 

Discontinuance * 509,  513,  560 

Disseisin,  defined 508 

Distress,  defined 425 

when  lawful 425,  426,  432,  530 

what  subject  to 426 

how  made,  disposed  of  and  avoided 428,  430 

a  kind  of  process. 429 

Disturbance,   defined 531 

kinds  of 531 

Disturbance,  remedies  for 532 

Divorce,  kinds  of 107,  459 

alimony ' 108,  460 

suits  for,  cognizable  where 45ft 

Donation  causa  mortis 418 

Dower,  tenancy  in,  defined 194 

who  may  be  endowed 194 


Index.  851 

}  ■         ■    '        • 

IReferences  are  to  pages.l 

Dower,  of  what  endowed 195 

manner  of  endowment 195 

assignment  of ! 197 

how  barred 198 

jointure ; 199 

Duke,    defined.     . , 90 

Duress 30,  276,  647 

E. 

Earl,  defined ., .,  t-,;    80 

Easements ..,..,.  i^,.  151 

Ecclesiastical  courts,  names  of 456 

jurisdiction  of 458 

procedure  in 457 

Ejectment,  title  to  lands  usually  tried  by 513,  519 

when  it  lies 514  et  seq. 

method  of  bringing 514 

damages  in 518 

Elegit,  estate  by ,.  j,.,„  .„- . .  213 

writ   of   '.•..,- 613 

Emblements,  who  may  have 191,  203,  346 

nature   of   ownership   of 3 17 

Entry,  as  a  remedy 510 

must  be  peaceable 311 

Equity,  proceedings  in  courts  of 616  et  seq. 

jurisdiction  exercised  by  courts  of 017,  634,  note 

nature  of 617  et  seq. 

difference  between  courts  of  equity  and  of  law 617  et  seq.,  620 

commencement  of  suit  in 023 

subsequent  proceedings 625 

pleading  in 626,  627 

evidence  in 621,  62!) 

method  of  hearing  causes   622,  631,  635 

decree   in   622,  632 

feigned   issues , 633 

references <. 633 

rehearing  and  review 634 

Equity  of   redemption 212 

Erasures,  in  deed 287 

Error,  writ  of.     See  Writ  of  Error. 

Escapes .....*».* 611,  674 

Escheat,   defined 171,  250 

a  consequence  of  tenure  in  chivalry 250 

kinds  of    : 251,  255 


•352  Index. 

[References  are  to  pages.] 

Esquirea 93 

Estate.    See  Freehold,  etc. 

defined 170 

Estate-tail.     See  Fee. 

Estates  upon  condition,  kinds  of 207 

Estates  in  coparcenary,  defined. 229 

how  it  arises 230 

properties  of 230 

how  dissolved 230 

Estates  in  joint  tenancey,  defined 224 

how  created 224 

properties   and  incidents  of 224,  225 

how  severed .' 227 

in  personalty  343 

king  cannot  be  a  joint  tenant 351 

Estates    in    possession 214 

remainder 214 

Estates  in  severalty,  defined 224 

Estates   at    suflFerance,    defined 206 

Estates   at   will,   defined 203 

incidents  of 204 

how  determined 204 

Estates   for  years,   defined 200 

incidents  of 203 

Estoppel,  pleas  in   566 

Estovers 151,  190,  203 

Estrays 67,  144 

Estrepement,  a  remedy  for  waste 528 

Evidence,  defined  .   588 

kinds  of 588 

what  kind  and  amount  required 588  et  seq. 

hearsay , 588 

presumptions 591 

exceptions  to 592 

in  equity 629 

criminal  evidence 776 

Exchange,  defined 292,  373 

Exchequer,  Court  of.     See  Courts. 
Exchequer  Chamber,  Court  of.     See  Courts. 

Execution,   follows   judgment 609 

kinds  of  writs  of 609,  610,  613 

when  to  be  sued  out 614 

in  criminal  cases 801 

Executor,  defined 4J!> 

how  appointed  .  " 409 


Index.  853 
>                       [References  are  to  page9.'\ 

Kxecutor,  duties   412 

de  son  tort 412 

Executory  devises,  defined 220 

distinction  between,  and  remainder , 221 

Extent,  writ  of 614 

F. 

False  Imprisonment.    See  Crimea ;  Habeas  Corpus. 

action  for , 478,  484 

Fealty,  defined 82,  159 

Fee  simple,  defined  180 

base  or  qualified 183 

conditional ; * . .  184 

tail,   origin  of 185 

what  may  be  entailed 185 

species   of   estates-tail 18G 

words  necessary  to  create 187 

incidents  of 187 

how  barred , 187 

after  pKXSsibility  of  issue  extinct 192 

Felony.     See  Crimes. 

defined 667 

Feoffment,  defined ■ 288 

form  of 803 

Feudal  system,  history  of 156  et  seq. 

fundamental  maxim 158 

Fieri  facias 612 

Fines,   defined 313 

how  levied 313 

kinds  of 314 

effect  of 315 

Fishi,  nature  of  right  to  take 354 

Fixtures 269,  359 

Flotsam 65 

Forcible  entry  and  Detainer.    See  Crimes. 

Foreclosure • 212 

Forfeiture,  title  by 263,  355 

for  what  lands,  etc.,  may  be  forfeited 67,  263  et  seq. 

goods  and  chattels 67,  351 

Forgery.     See  Crimes. 

Franchises '. ^ 153 

Frankalmoign,   defined 178 

Fraud,  a  defence 372 

Freedom  of  speech  and  of  the  press 28,  087 


854  Index. 

[References  are  to  pages.'] 

Freeholds.    See  Fee;  Life  Estate. 

defined 179 

kinds  of 179 

inheritance, 179,   189,  202 

Game.    See  Crimes. 

nature   of    right    in 144,  353 

Gaolers 73 

Gavelkind,  defined 169 

Gentlemen.  .  .   , 93 

Gift,  conveyance  by,  defined 290 

of   personalty,   defined 368 

requisite* 369 

Government,  different  forms  of 7 

British  form  of 8 

Grand  serjeanty 167 

Grants,  defined    312 

of  the  king,  how  construed 312 

Guardians,  defined 1 19 

kinds   of 119,  123 

power  and  duty  of  guardian  and  ward ■. 120 

ad  litem 121 

testamentary 120,  123 

remedy  of,  for  injury  to  ward 487 

H. 

Eaheas  corpus  32,  479  et  seq. 

Half-blood,  cannot  inherit    246 

admitted  to   administer 411 

Heirlooms 145, . .  359 

Heirs,   defined 241 

Avhen  this  word  must  be  used  in  order  to  make  a  fee 182,  187 

Hereditaments.     See  Real  Property. 

Heriots,  defined   176,  357 

seiizing  of    432 

High  court  of  justice 441,  not« 

Homage,  defined    159 

Homicide.     See  Crimes. 

Hotchpot 421 

House   of   Commons ^ ■  •  •  39 

laws  and  customs  of : . .  41,  43 


Index.  8 

[References  ar«  to  pages.] 


55 


House  of  Lords.    See  Parliaments,  Lords  of  Parliament. 

laws  and  customs  of 34,  39,  43 

jurisdiction  of   454 

Hundreds 23 

Husband  and  wife.     See  Marriage. 

rights  and  duties  of 103  et  seq. 

disabilities  of   wife 277,  405 

husband  may  be  wife's  administrator 404 

action  for  injuries  to 486  et  seq. 


» 


I. 


Idiots,  and  insane  persons;  who  are  idiots 68 

jurisdiction  over   616 

disabilities  of 276,  404,  645 

who  may  take  advantage  of  disability 277 

Ignorance,  of  law  no  excuse 0 

Imparlance .561,  562 

Impeachment,  of  king's  advisers 50 

method    of    737 

Imprisonment,  what  is 30,  32 

when  lawful   32 

Indebitatus  assumpsit   497 

See  actions  in  the  case. 

Indenture,  defined  279 

Indictment.    See  Crimes. 

Indorsement.     See  Bills  of  Exchange. 

Infants,  en  ventre  so  mere 29 

privileges  and  disabilities  of 121  et  seq. 

criminal  capacity  of 121,  714 

Information.     See  Crimes. 

nature  of    536 

when  it  lies   536 

in  nature  of  quo  warranto 538 

Inheritance,  canons  of   240  et  seq. 

Injunction,  to  stay  waste  528 

Injuries.     See  Wrongs. 

Innkeeper 378,  505 

Inquest  of  office,  defined 535,  753 

Insane  persons.     See  Idiots. 

Insurance,  nature  of  contract 383 

International   law.     See   Crimes ^ ^'^^ 

Interest ^^^ 

Interpretation  and  construction,  rules  for 9,  329 

Intrusion,  defined -^ 508 


856  Index. 

[References  are  to  pages.] 

Islands,  titk  to ^ 258 

Issue,  defined  571 

kinds  of 671 

how  tried 672 

J, 

Jailers 73 

Jetsam , 65 

Joint  tenancy.     See  Estates  in  Joint  Tenancy.' 

Jointure.     See  Dower. 

Judges,  how  commissioned   ■. 62 

Judgment,   defined    365 

kinds   of    603 

causes  of  suspending  or  arresting 598,  600 

relation  back  of   614 

satisfaction  of ■ 614 

in  criminal  cases    791 

reversal  of    795 

Jurisdiction.     See  Courts.  .  .  .     ..^ 

of  ecclesiastical  courts  Vv'.v .v. 458 

courts  military    462 

admiralty  courts , 462 

courts  of  common  law   464 

Jury.     See  Trial;   Crimes. 

special  and  common    582,  583 

challenges » 583 

exemptions , 586 

tales-men 586 

Justice  of  the  peace,  appointment,  power,  duty,  etc ;  .75,  734 

jurisdiction   in   summary  convictions 741 

K. 

King,  The,  and  his  title  49 

his  royal  family   51 

councils " 53 

duties 54 

prerogatives 55 

revenue 65  et  seq. 

cannot  be  a  joint  tenant 351 

grant  of  chattel  to  361 

grants  by    312 

assignment  of  chose  in  action  to 370 

can  do  no  wrong 56,  533 


Index.  _        ^„  8 


<>•, . 


Oi 


[References  are  to  pages.} 

King,  The,  no  action  against 53$ 

remedies  against 534 

remedies  of,  against  subject 534 

King's  Bench.     See  Courts. 

Knight 9-2 

Knight  service,  defined 163 

fruits  and  consequences  of 164 

I.. 

Land.     See  Real  Property. 
Larceny.     See  Crimes. 

Latitat,  writ  of,  when  issued 548 

Law,  defined    1-4 

of  nature 2,  3 

revelation 3 

nations 3,  4 

municipal  law  defined   4 

classified 11 

of  nations,  crimes  against 657 

'         how  notified 4-5 

ex  post  facto   ^ 

ignorance  of,  no  excuse  6 

power  to  make,  constitutes  the  supreme  authority 8 

several  parts  of  a  law 8 

interpretation  of 0 

lex  scripta  and  non  scripta 11 

common  .  .  . 1'^ 

countries  subject  to  law  of  England 22 

Lease,   defined 290 

Lease  and  release,  conveyance  by 306,  803 

Legacy,  defined    416 

kinds  of    417 

how  perfected  and  paid 416,  417 

Letters  of  marque  and  reprisal,  by  whom  issued .- 59 

Letters  patent,  defined   312 

Levari  facias    "^^ 

Libel,  civil  action  for • • 476 

indictment  for   •  •  • ^^^^' 

Liberty.     See  Freedom  of  Speech  and  the  Press. 

natural ' ' 

political,  or  civil   "^ 

personal ^ 

religious 

of  the  press   28,  687 

life  and  natural  right   29,  Si 


858  Index. 

[References  are  to  pages.] 

Life  estate,  kinds  of ." 180 

how  created    - 18'.) 

incidents   of    190 

Light,  right  to   143,  345 

Limitation,  distinguished  from  condition   208 

Livery  of  seisin.     Sec  Seisin.  " 

Lords  of  Parliament.     See  Nobility. 

spiritual  and  temporal   38,  39 

privileges   of 40 

M. 

Magistrates,  supreme  and  subordinate 36 

subordinate 71 

Maintenance.     See  Crimes. 

Majority,   binds  whole    44,  131 

Malice.     See  Crimes. 

in   torts   476 

Malicious   prosecution    477 

Mandamus,  writ  of,  defined   465 

when  it  lies   , 465,  539 

Manor,  definition  and  description  of 172 

Margins 90 

Market  overt   „ 377 

Marriage.     See  Husband  and  Wife. 

a  civil  contract   103 

requisites    of    103 

disabilities 104,  277,  278 

how   dissolved    107 

consequences  of   108  et  seq.,  362 

Master  and  servant,  kinds  of  servants 95 

rights  and  duties  as  respect  each  other  and  third  persons.  .97  et  seq.,  487 

Master  of  the  Rolls,  jurisdiction  of 630 

Mayhem 29,  714 

Merger,  when  takes  place  223 

Military  tenures,  abolished    ^ 167 

Mines 66 

,  Misprisions.     See  Crimes. 

Monarchy,   defined    7 

Monsters,   cannot   inherit    25 1 

Month,    defined    2i^0 

Mortgage,   kinds   of    210 

rights  of  parties  to   211  et  seq. 

Mortmain,  defined    131,  263 

history  of  statutes  of 263  et  seq. 


Index.  859 

[References  are  to  pages,] 

Mortuaries,   defined,  etc 357 

Municipal  Law.     See  Law. 

Murder.     See  Crimes. 

Mystic  testament    404  note 

N. 

Natural-born  subjects    82 

Naturalization 87 

Necessaries.     See  Infants;  Married  Women,  etc. 

Negotiable  Instrument  Law   388 

A^e  exeat,  writ  of 33 

New  trial,  when  granted 559 

Night 71» 

Nisi  Prius,  Courts  of.     See  Courts. 

Nobility,  degrees  of,  derived  from  the  king 90 

incidents   attending    91 

Nonsuit 559,  594 

Nuisance.     See  Crimes. 

defined 524 

abatement  of   425 

kinds  of    524 

remedies   for    526 

0. 

Occupancy,  title  by,  how  acquired 256 

in  things  personal 344 

Offices 152 

Original  writ,  defined 541 

kinds   of    542 

return   of    ^ 543 

Ouster,  defined 508 

kinds   of 508 

of  chattels  real   '.■- 514 

Outlawry,  in  civil  eases 547 

Overseers  of  the  poor 78 

Oyer 561 

P. 

Paraphernalia,    defined    364 

Pardon,   plea  of    792 

what  may  be  pardoned   798 

manner  of   pardoning    799 

effect  of  800 


8G0  Index. 

[References  are  to  pages.] 

Parent  and   child.     See  Bastard. 

legitimate  child,  defined    , 112 

illegitimate   child,   defined    115 

duties  of  parents 112 

power  of  parents    114 

duties   of   children    : 115 

Parish 23 

Parliament,  branches  of    37 

assembling  of 36 

power  and  jurisdiction  of   34,  39 

law  and  custom  of  34,  39,  43 

,privileges  of 34,  40 

adjournment,  prorogation,  and  dissolution  of   48 

as  a  criminal  court   737 

Partition,  defined    292 

Passports 60 

Patent,  letters  of    312 

Peers.     See  Nobility. 

how  created    90 

Penalties 365 

Perjury.     See  Crimes. 

Personal   liberty    31 

Personal  property.     See  Chattels. 

nature  and  kinds  of 145,  333,  335 

how  acquired   335 

time  of  enjoyment  of  , 342 

number  of  owners    343 

effect  of  marriage  on,  of  wife 362 

Personal    security    29,  30 

Petition  of  right 481 

Petit  Serjeanty,  tenure  in,  described    169 

Piracy .' 659 

Pleading.     See  Demurrer;   Equity;   Criminal  Law. 

defined 554;  555 

names  of  the  different  pleadings    551 

declaration 556 

counts  of 55S 

defence 560 

pleas 561,  562 

kinds   of    502 

general   issue    565 

special    pleas     565,  566 

duplicity 566,  568 

puis  darrein  continuance    57'> 

replication 567,  5Qii 


Index.  801 

^References  are  to  pages.] 

Pleading,   rejoinder,   etc 508 

departure 568 

new   assignment    568 

;         issue 570,  571,  572 

repleader 602 

in   equity    ^ 626 

Postea,   defined 598 

Pound,  defined 430 

Praemunire 669 

Precedents,  to  be  followed  13 

Prerogative,   limitations   of    ; 34 

division  and  consideration  of  55  et  seq. 

title  by    35 1 

contempts  of    671 

Prescription,   title  by    260 

distinction  between  custom  and  prescription 260 

what  may  be  prescribed  for 26<i 

Presentment  .  .  ^ > 753 

Primogeniture 242 

Prince  of  Wales 52 

Private  property,  right  to 28,  33 

Privies,  defined    3  HI 

Procedendo,  writ  of - 465 

Process,    defined    544 

kinds  of 544  et  seq. 

frochein  amy,  suit  by   •  •  121 

Profert  and  Oyer    561 

Prohibition,  writ  of,  defined    467 

when  it  lies   467 

procedure  upon    ; 467 

Promissory  note,   defined    386 

consideration   of    372 

assignable 386 

indorsement 389 

protest  of    387 

Property.     See  Real  Property;  Personal  Property. 

origin  and  nature  of   33,  137  et  seq. 

in  things  personal    335   et  seq. 

in  chattels,  how  acquired   ^43. 

in  animals    •  •  • 14'J 

Prorogation,    defined    47 

division  and  consideration  of   47 

Province  

P»irchase,   defined 248 

difl'erence  between  and  descent   "49 

methods  of  acquiring  title  by 250 


862  -  ^  Index. 

[References  are  to  pages.] 

Q. 

Quantum  meruit   503 

Quantum   valebat    503 

Quarantine 693 

Queen,  consort,  regnant,  and  dowager 61,  40ft 

Quia  emptores,  statute  of    275 

Quit-claim    deed    291 

Quo  minus,  writ  of   * 548 

Quo  warranto,  as  a  means  of  dissolving  a  corporation 135 

information  in  nature  of 75^ 

R. 

Rape.     See  Crimes, 

Real  property.     See  Freehold,  etc. 

nature  and  kinds  of  145 

land 145 

tenements , 145 

hereditaments , 145 

incorporeal,  sorts  of 149 

heirlooms 145 

conditions 145 

effect  of  marriage  on,  of  wife   362 

Recaption 424 

Recognizance,    defined    308 

for  tlie  peace,  etc 735 

Record,  what  constitutes 573 

verity    of    437 

in  what  language  Avritten    574 

Release,    defined    293 

Remainder,    defined 214 

kinds  of    217 

how  limited 217 

requisites   of    217 

contingent 217  ct  seq. 

executory  devises 220 

Remedies.     See  the  several  Actions. 

of  wrongs,  by  the  mere  act  of  the  injured  party 423 

by  joint  act  of  both  parties 432 

by  mere  operation  of  law   434 

by   action    436 

for  ouster   508 

Remitter,   defined    434 

Rent,  defined   15i 

kinds  of    154 


Index.  863 

[References  are  to  pages.] 

Rent,  when  and  where  due 155 

remedy  for    155 

Keplevin,  when  the  action  lies 489  et  seq. 

Reports,  evidence  of  the  law 14,  15 

Representation,  right  of    421 

Reprieve,   defined    797 

kinds   of    797 

Rescue 675 

Respondentia 382 

Retainer,   deiined    434 

Retraxit 560 

Revealed  law.     See  Law. 

Revenue  of  the  king 65 

Reversion,   defined    214,  222 

how  arises,  and  incidents  of 222 

Rights,   division  of    25,  20 

fundamental  articles  of   25,  27 

absolute 25,  27 

how    forfeited    > 31 

auxiliary  subordinate  rights  of  the  subject 34 

Riot.     See  Crimes. 

Robbery.     See  Crimes. 

Roman  civil  law.     See  Civil  Law. 

Routs.     See  Crimes. 

Royal  family    , .  . .  51 

s. 

Safe-conducts 60,  657 

Sale,   defined 373 

rules  concerning   373 

statute  of  frauds    376 

Schoolmaster,   power  of    •. 1  lo 

Scire  facias,  when  it  lies   536,  615 

Seisin,  livery  of,  defined   288,  289 

when  necessary    288 

kinds  of    288 

Self-defence.     See  Crimes. 

Serjeants-at-law 438,  4.39 

Set-off 565 

Settlement,  how  gained   79-81 

Severalty,   estates  in    224 

Shelley's  case,  rule  in   249 

Sheriff,  derivation  of  name ^....  71 

power  and  duty  of 71,     580 

inferior  officers   of 73 


8G4  Index. 

[References  are  to  pages.} 

Simony,  defined 269 

Six  Carpenters'  Case   522 

Slander,  when  spoken,  words  are  actionable  474,  475 

Slavery 96 

Socage,  definition  and  description  of 16S 

Society,  natural  foundations  of  /r. . .  6 

original  contract  of  u 

State's   evidence    7fifi 

Statutes,  method  of  making  44 

Statute  de  donis,  effect  of  on  conditional  fees 185 

Statute  merchant  and  staple,  defined  214,  614 

Statute  of  distributions    419 

Statute  of  frauds,  as  afTecting  uses  304 

wills 326 

17th  section   37« 

4th  section   384 

of  limitation   260,  566 

Statute  of  uses.     See  Uses. 

Statutes,  different  kinds  of   18,  19 

rules  for  construction  of  20 

method  of  making   44 

Stoppage  in  transitu  374  note 

Subpcena,  ad  testificandum 589 

in  chancery 625 

Subtraction,   defined    530 

remedies  for   530 

Succession,  title  by 360 

Suicide.     See  Crimes. 

Summary    convictions    741 

Summons,  commencement  of  actions  by 540  note 

Surrender,  defined    294 

as  a  method  of  conveying  copyholds 392 

Surveyor  of  the  highways 78 

T. 

Taxes,  imposed  only  by  consent  34,  70 

a  branch  of  the  prerogative 35 1 

Tenancy  in  common,  defined 231 

how  created    231 

incidents  of    233 

how   dissolved    234 

in  personalty 343 

Tender,  plea  of •  564 

Tenement.     See  Real  Property. 


Index.  865 

[References  are  io  paget."] 

Tenure,  defined   158 

fundamental  maxim  of 15(8,  158 

ancient  English  tenures    162 

modern  English  tenures   168 

Testaments.     See  Wills    401,  406 

Time,   divisions  of    200 

Tithes,  defined 149 

Title,  defined   235 

degrees    of    235 

how  lost  and  acquired    237 

by  descent 239  et  seq. 

by  purchase 248  et  seq. 

Tombstones,  descend  to  heir  359 

Torts.     See  Wrongs   423 

Towns 23 

Treason.     See  Crimes. 

Treasure-trove : 66 

Treaties,  made  by  king , 59 

Trespass.     See  Action  of  Trespass,  infra. 

defined 471 

Trespass,  action  of,  when  it  lies 471,  484,  485,  488,  493,  520 

Trespass  on  the  case.     See  Assumpsit. 

when  it  lies  473,  488,  497,  505 

Trial.     See  Criminal  Law. 

defined 575 

kinds   of 575 

by   record    57o 

inspection 575 

certificate 570 

witnesses 577 

battle •■••  577 

wager  of  law 57b 

jury 579  et  seq.,  587 

defects  of  trial  by  jury 596 

Trover  and  conversion,  when  the  action  lies 494 

Truth,  when  a  defence    ** ' 

Trusts.     See  Uses  and  Trusts. 

u. 

Under-sheriff ^^ 

Uses  and  trusts,  origin  of  296  et  seq. 

conveyances  under  the  statute  of  uses 305-307 

rules  respecting  uses  "^'  **  *^- 

statute  of  uses    ''^ 

in  what  courts  cognizable  ^^" 


866  Index. 

[References  are  to  pages.1 

Uses  and  trusts,  contingent  uses 301 

secondary   uses    302 

statute  of  frauds   ^ 304 

rules  respecting  trusts    304 

Usury 380 

V. 

Venire  facias,  writ  of  579 

Venue,  change  of , 597 

Verdict,   kinds  of    595 

method  of  finding  and  returning , 594  et  seq. 

in  criminal  cases   779 

Veto   power    38 

View 561 

Villenage,  origin  and  description  of 171  et  seq. 

Viscount,   defined    91 

w. 

Waifs 66 

Ward.     See  Guardian. 

Warrant  of  attorney   604 

Warrants,  by  whom  granted 745 

special   and  general    740 

Warranty,  upon  sale  of  chattels   378,  526 

Waste,  defined    269,  527 

kinds   of   270,  527 

who  punishable  for    271 

penalty  for  committing   272 

who  injured  by   527 

remedies    for    528 

action  of 528 

Water,  right  to   143,  345 

W'ays 151 

Wills,  origin  and  history  of   325,  401 

statute   of    325,  326 

how  executed    326,  327 

rules  for  construing  .-. 329 

who  may  make 325,  404 

of   chattels    401 

nuncupative  and  codicils   406.  407 

when  take  eflfect    406,  403 

how   avoided    408 

probate   of 460 


Index.  867 

[References  are  to  pages.] 

Witnesses,  attendance  of,  how  procured 589 

competency   of 590,  715 

number   required    591,  777 

oath  of    592 

how  examined  in  equity   629 

Wrecks 144 

Writ  of  entry   512 

Writ  of  error,  when  it  lies G08 

judgment  on    453 

in  criminal   cases    796 

Writ  of  inquiry    604 

Wrongs,   defined    423 

species  of    24 

remedy  for.     See  Remedies    429 

Year,  defined    200 

Yeoman 93 


[Total  number  of  pages  883.] 


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